9911796707
TMI Blog2024 (2) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... EOU"). The Appellant, Hasmukh I. Patel, was employee and authorized signatory of the100% EOU. 2. On 3-8-2011, the100% EOU applied to the Development Commissioner for permission for De-bonding and exit from EOU. 2.1 On 18-8-2011, the Development Commissioner granted in-principle approval and thereafter on 08-08-2012, the Development Commissioner granted permission to exit from EOU subject to grant of "No dues Certificate" by the Assistant Commissioner of Central Excise. 2.2 The factory premises of the 100% EOU were visited by the Central Excise officers for verification of the stock of raw materials, capital goods and finished goods available at the time of De-bonding and calculation of the duty payable thereon was also verified by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sic customs duty (BCD) was erroneous. The BCD was wrongly calculated on the local MRP which is contrary to the proviso to Section 3(1), b) The CVD was wrongly calculated on the MRP instead of MRP less abatement and the rate of CVD was also incorrect, c) Education Cess and Secondary and Higher Secondary Education Cess were wrongly taken again on the aggregate of customs duties once again although the same were already considered while calculating the aggregate of customs duties. 2.6 After giving a hearing in the matter, the Principal Commissioner of Central Excise, Vadodara-I by Order-in-Original dated 31-5-2016 confirmed demand for duty of Rs. 70,07,901/- and imposed penalty of Rs.35,03,951/- on the Appellant Contacare Ophthalmics and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther wrongly taken Education Cess and Secondary and Higher Education Cess once again on the aggregate of customs duties, although the same were already considered while calculating the aggregate of customs duties which is contrary to the law laid down by the Tribunal in Sarla Performance Fibres Ltd v CCE - 2010 (253) ELT 203 and by the Larger Bench of the Tribunal in Kumar Arch Tech P. Ltd - 2013 (290) ELT 372. 3.1 On limitation it was submitted that, it is evident from the letter dated 22-5-2012 that the department was fully aware of availing of notification No. 23/2003-CE. Therefore, the larger period of limitation is inapplicable in the present case, the following decisions are relied upon in this behalf: (a) Virgo Valves & Controls P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after verification of duty payment and issue of No dues certificate by the central excise officer. 5.1 It would be evident from the calculation appearing at page 55 of the Appeal that the Principal Commissioner has wrongly calculated the Basic customs duty on the MRP of the goods, which is contrary to the provisions of Proviso to Section 3 (1) of the Central Excise Tariff Act. As per Proviso to said Section 3 (1), Excise duty on goods manufactured by a 100% EOU and brought to any place in India shall be an amount equal to aggregate of customs duties leviable on like goods when imported into India and the value of such goods shall be as per the Customs Act 1962 and the Customs Tariff Act 1975. The said Acts do not provide for calculating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-05-2015, which is purportedly issued under Section 11A (5) of the Central Excise Act 1944 was not maintainable in law since the said Section 11A (5) stood omitted with effect from 14-05-2015. The show cause notice having been issued under a non-existing provision is not maintainable in law. Further the said Section 11A (5) read with Section 11A (4) is applicable in cases of fraud, collusion, willful mis-statement, suppression of facts or contravention with intent to evade, none of which is present in this case. As evident from letter dated 22-5-2012 of the Superintendent, prior to de-bonding, the factory was visited by the Central Excise officers and the stock and calculation of duty were duly verified by the Central Excise officers. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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