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TMI Blog2024 (9) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... n 52/2003-CE dated 31.03.2003. The said Notification requires the appellant to use all the imports for manufacture of goods within the EOU. The said Notification also mandates that if any goods are cleared to the domestic EOU. The said notification of such goods has to be denied. The appellant had cleared certain raw materials imported under Notification 52/2003-Cus to the domestic tariff area (DTA) after intimating to the department. The appellant cleared the said goods by issue of invoice and paid an amount equal to the sum of basic custom duty, CVD, CESS and SAD by debiting the same in the cenvat credit account. 2.1 Central Excise Revenue Audit (CERA) raised an objection on the manner of payment of duty in respect of such clearance by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of said amount on the aforesaid grounds. In these circumstances, in para 5.9.2, he holds that since the appellant had executed a B-17 Bond in respect of Notification 52/2003-Cus, the same should be enforced for effecting the recovery and the same is not affected by the plea of time bar or limitation aspect. After observing all the facts mentioned above, the Commissioner upholds the order-in-original except for reducing the penalty by half. Learned counsel pointed out that there was no charge in the show cause notice for any demand of customs duty. The order-in-original confirmed Central Excise duty on the appellants although the show cause notice was issued under Section 11A of the Central Excise Act. He pointed out that the order in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at credit. The CERA was of the view that the duty should have been paid in cash/PLA/GAR-7 Challan and not through cenvat credit. The revenue issued a show cause notice under Section 11A demanding the amount paid in the said clearance invoice in cash treating the same as Central Excise duty. The said show cause notice also sought to deny utilization of cenvat credit for the purpose of payment of such custom duty. 6. From the facts of the case, it is obvious that the amount to be paid at the time of clearance of imported goods to DTA in these circumstances is custom duty and therefore, any demand of duty in respect of such goods can only be customs duty. Customs duty cannot be discharged by utilizing cenvat credit as the cenvat credit rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment, when imported items are involved. (iv) In respect of indigenous items (ii) above, where indigenous items are involved and where the Appellants have utilized the Cenvat credit, no demand sustains. (v) For the cash payments done in respect of (iii) above, the Appellants would be entitled to get appropriate relief, by approaching the relevant forum." From the aforesaid decision also it becomes clear that in respect of imported inputs cleared by EOU only demand of custom duty can be made under Section 28 of the Customs Act, 1962 in respect of inputs obtained duty free cleared to DTA by EOU, the same can be cleared on payment of Central Excise duty and in such cases, notice under Section 11A of the Central Excise Act, 1944 can be rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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