TMI Blog2001 (3) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... stocks/records and seized 77 Nos. of Granite slabs. The appellants vide their letter dated 7-12-1996, reconciling the stocks explained that 181 slabs polished/unpolished were removed from the factory (licenced premises) and were lying adjacent to their office, in another shed known as Jiglur Service Centre. The same were seized on 18-12-1992, 78 tiles were seized on 24-12-92 from the factory. 3. A notice was issued on 15-4-1993, alleging contravention of Rule 9 (1), 110-B, 100-D 100-E alleging - (a) 77 Nos. of Granite slab (measuring 265.485 sq meters under seizure on 16-10-1992 and 194 slab (166 unpolished 28 polished) cleared without payment of duty from the factory and seized on 18-12-1992 and 78 Nos. granite slabs (SIC) (it sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent appeal is against this order. 5. We have heard both sides and considered the material and find - (a) The primary objection of the appellants about the jurisdiction of the authority to issue show cause notice by the Collector incharge on a 100% E.O.U. has a force upheld by the Board vide their instructions on the demands for duties of Customs, if export objections (sic) (obligations) are not met. These instructions provide for issuance of show cause notice by Revenue, but also stipulate that adjudication should be proceeded with, only after the Development Commissioner in-charge of E.O.Us have been intimated about the violation. These instructions issued by Circular No. 21/95-Cus., dated 10-3-1995 and 122/95, dated 28-11-1995 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of SIV Industries - [2000 (117) E.L.T. 281 (S.C.)] have taken cognisance of the stand of Revenue in para 22 of the reported decision as follows - "....It will thus be seen that it is the stand of the Revenue itself that the proviso to Section 3(1) of the Act is applicable to 25% of goods, sold by an E.O.U in DTA……" and the Hon'ble Supreme Court in this very decision in para 18 have held - "….It also becomes apparent that in view of the E.O.U. scheme as modified from time to time and corresponding amendments to Section 3 of the Act the expression "allowed to be sold in India" in the proviso to Section 3(1) of the Act is applicable only to sales made up to 25% of production by 100% EOU in DTA and with the permission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation as arrived at the order. (d) We have considered the charge of difference between the RG.1 and the Bank Statements on which allegation of clandestine removal and demand of duty are being made. We find, RG.1 is a document prescribed under Rules 47, 53 173G of the Central Excise Act. Rule 100-H(3) under Chapter V A, applicable to 100% EOU, specifically provide that provisions of Rules 47, 53 of the Rules shall not apply to excisable goods produced or manufactured by a 100% EOU. We find Rule 173A(2) provides that provisions of Chapter VII A will not apply to 100% EOU, therefore Rule 173G will not apply to the alleged RG.1. When, excisability is itself depended on 'allowed to be sold' and the Rules 47, 53 and 173G are not applicable, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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