9911796707
TMI Blog2022 (7) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27th September, 2006 (admission order) and 14th January, 2008 (Final order) passed by respondent no.2, Settlement Commission, Customs and Central Excise. We are dealing only with the final order dated 14th January, 2008 since the order of admission is subsumed with the final order. 2. At the outset, Mr. Sridharan states that name of petitioner has been changed from "Tata Yazaki Autocomp Ltd." to "Yazaki India Ltd." and the company is also been converted into 'Private Company' from 'Public Company'. Mr. Sridharan tenders a copy of fresh certificate of incorporation consequent upon conversion from 'Public Company' to 'Private Company' dated 29th January, 2015. In this certificate, it is also mentioned that the previous name of petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and cleared by the domestic unit is determined in terms of Section 4 of the said Act. 5. In respect of goods manufactured by the EOU and exported, there was no excise duty payable. But in respect of goods manufactured by the EOU and cleared to Domestic Traffic Area (DTA), i.e., not exported but sold within India, the excise duty levied was in terms of the proviso to Section 3(1) of the Act. The duty levied was equal to the aggregates of duties of customs leviable under Section 12 of the Customs Act, 1962 or any other law for time being in force, at the rate mentioned in the Customs Tariff Act, 1975 on like goods imported in India. It was in the range of 39.2% to 56.832% depending upon the period. The value of such goods manufactured by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the goods manufactured in the EOU but sold in DTA. Petitioner admitted the duty demand but paid only Rs.9,22,61,405/- to the Government. Petitioner disputed the balance amount of Rs.9,60,78,987/- as payable. This amount of Rs.9,60,78,987/- and petitioner's reason for dispute can be bifurcated as under: "(a) Amount of Rs.7,31,58,191 : The rate of excise duty payable by the EOU unit varied from 39.2% to 56.832% (depending upon the period) whilst the rate of excise duty payable by the DTA unit was 16%. The excise duty demanded against Petitioner in the SCN was on the premise that the EOU unit was liable to excise duty at the rate of 39.2% to 56.832%. The amount of Rs.7,31,58,191 was the amount of excise duty paid by the DTA unit at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xchange ('NFE') as required under the said Notification." 8. As regards the second item, i.e., (b) of Rs.1,92,39,856/-, we have to note that respondent no.2 has accepted and has been allowed by respondent no.2. What is required to be considered is item (a) and item (c). 9. So far as item (a) is concerned, i.e., Rs.7,31,58,191/- according to respondent no.2, petitioner should pay the entire amount and claim refund of Rs.7,31,58,191/-. According to respondent no.2, the DTA unit and the EOU unit are independent of each other and, therefore, petitioner cannot claim adjustment / credit for the amount, which was paid to the DTA unit for the liability of the EOU. At the same time, in the impugned order, respondent no.2 says that the duty liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to a query posed by the Court that he has not come across any such specific prohibition. Even, the impugned order does not specify any prohibition or the specific provision of prohibition. 10. In the circumstances, we are unable to accept the stand of respondent no.2 that even though petitioner has already paid Rs.7,31,58,191/- through the DTA unit, the amount should once again be paid through the EOU unit and petitioner should apply for a refund of the amount paid through the DTA unit. If petitioner is compelled to do that, it would only mean that petitioner has to pay the said amount twice and then claim refund. 11. As regards item (c) is concerned, i.e., Rs.36,80,850/-, abatement on account of applicability of Notification No.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India, calling for the records of the Petitioner's case and after going into the validity and legality thereof to quash and set aside the Orders dated 27.9.06 and 14.1.2008 passed by Respondent No.2, to the extent directing the Petitioners to pay Rs.7,68,39,041/-, to the extent levying interest @ 10% per annum and levying penalty on both the units of the Petitioners." 13. It is open for respondents to calculate if the figures really tally and if there is difference in amounts paid and amounts adjusted, respondents may take such further steps as advised. 14. After respondent no.2 had admitted the application, petitioner had approached ..... X X X X Extracts X X X X X X X X Extracts X X X X
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