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TMI Blog2004 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/95-C.E., dated 4-1-1995 during the above two financial years. (b) that for the clearances to DRDO, Thermal Power Corporation and District Forest, Erode, the assessee was not eligible for exemption claimed under Notification No. 39/96-Cus., dated 23-7-1996 as the said Notification was applicable only to the goods imported into India and not to the goods manufactured in India. (c) that for the clearances to Public Funded Research Institutions like LEOS, Bangalore, BARC Mumbai etc., the assessee was not eligible for exemption claimed under Notification No. 51/96-Cus., dated 23-7-1996 as the said Notification was applicable only to the goods imported into India and not to the goods manufactured in India. The proceedings culminated in the order of adjudication passed by the Commissioner as aforesaid. 3. Shri R. Raghavan, learned Counsel appearing for the applicants submitted that the issue in the appeal relates to clearances made to DTA. He submitted that the appellants are a 100% EOU and they supply the goods to Defence Department and ISRO etc. They are eligible to the benefit of Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier period, proceedings drawn in their own case were dropped by the Department vide Order-in-Original No. 6/2001, dated 25-7-2001 and inasmuch as that decision has not been appealed against, it has attained finality. Therefore, the present proceedings initiated by the Department is not sustainable. In support of his plea he has invited our attention to the judgment of the Hon'ble Apex Court in the case of CCE, Calcutta v. Suntrack Electronics (P) Ltd. reported in 2003 (156) E.L.T. 163 wherein the Hon'ble Supreme Court has held that when similar earlier order has not been appealed against by the Revenue and Tribunal has relied upon its earlier order which the Revenue has not chosen to challenge, present appeal cannot be entertained. He has also invited our attention to the judgment of the Hon'ble Apex Court in the case of CCE, Pune v. Tata Engineering and Locomotives Co. Ltd. reported in 2003 (158) E.L.T. 130 (S.C.) = 2003 (59) RLT 237 (S.C.) wherein also similar view was taken by the Hon'ble Supreme Court. He therefore, submitted that the department was bound by their earlier decision as in Order No. 6/2001, dated 25-7-2001 of the CCE, Trichy. He submitted that in view of above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determining the liability. The applicability of the Notification issued under Customs Act, for clearance to DTA is settled by the various decisions cited in Para 3 above. (f) The question of applicability of Customs Notification for calculating aggregate duties of Customs as per proviso to Section 3(1) was also clarified by Bombay-III Commissionerate Trade Notice No. 4/CUS/94, dated 14-11-1994. It is only in the above circumstances, the appellants have contended that they are eligible for Exemption under CN No. 51/96. Further, it is clarified in MF & CA (DR) Circular No. 27/2003-Cus., dated 2-4-2003. [2003 (153) E.L.T. T 52/53] that if delivery of goods is to those institutions as in CN 51/96-Cus., the exemption has to be extended even while the importer may not be the Institution referred to in the said Notification. (g) It is to be noted that if other manufacturers who are outside EOU are to clear subject goods to Public Funded Research Institutions, CEN 10/97-C.E., dated 1-3-1997 provides nil rate of duty. Therefore, there is no undue advantage to EOUs if benefit of CN 51/96-Cus., is cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1997 (95) E.L.T. 161 (S.C.) wherein the Apex Court has ruled that benefit of exemption notification cannot be extended to someone on the ground that such benefit had wrongly been extended to others. The Hon'ble Apex Court has also held that Article 14 of the Constitution cannot be attracted where wrong orders are issued in favour of others and that wrong orders cannot perpetuate with the help of Article 14 and that there is no discrimination if correct orders are passed even if wrong orders were earlier passed in favour of some other persons. He further submitted that Notification No. 51/96-Cus., clearly prescribes that the benefit is admissible to Public Funded Research Institutions or a University or a IIT or IIS, Bangalore or Regional Engineering College other than a Hospital. Appellants are not covered by any one of the above prescriptions. He submitted that the appellants are a profit making unit and they have made a profit of Rs. 128.56 lakhs after tax for the year ended 31-3-03. They have not made out a prima facie case in their favour and hence they should be put to terms, argued the learned JCDR. 4.1 On behalf of the learned JCDR, the learned SDR Smt. Bhagyadevi also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Institution. We further note that the Ministry of Finance vide Circular No. 27/03, dated 2-4-2003 has issued a clarification that the benefit of concessional rate of duty under the said Notification has to be allowed even in those cases where imports are made by importers other than the Institutions specified in column No. (2) provided the imports are made for delivery to an Institution specified therein. They have also produced a certificate from the Indian Space Research Organisation (ISRO), Department of Space, Government of India, certifying that their Laboratory for Electro-Optics Systems, is a Public Funded Research Institution and that they have placed an order No. LPCO451R1L, dated 5-7-2001 on the appellants for supply of alignment cubes and that the goods covered by the said order are required for Research purposes only. Prima facie the appellants cannot be denied the benefit of Notification No. 51/96-Cus., dated 23-7-1996, in view of the Clarifications issued by Ministry of Finance vide Circular No. 27/2003-Cus. wherein it is clarified that "Harmonious construction of the provisions of the Notification leads to the clear interpretation that benefit of concessional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 14. We observe that this ruling has no application to the present proceedings inasmuch as in the present case, on identical issue in respect of the appellants themselves, there was order in their favour vide Order-in-Original No. 6/2001, dated 25-7-2001 and since that decision having not been appealed against, it has attained finality. The Revenue has not gone in appeal on the ground that it was a wrong order. Therefore, at this stage, the Revenue cannot turn around and say that the earlier order was a wrong order even though they have not appealed against it. We therefore, find force in the submissions made by the appellants in this regard as the principle of res judicata prima facie applies. 6. Now coming to the plea taken by the Revenue that in terms of the first proviso to Section 3(1) of the C.E. Act, 1944, the appellants have to discharge duty liability at the tariff rate. No doubt, appellants being 100% EOU their clearance to DTA are liable to duty in terms of proviso to Section 3(1) of the C.E. Act and this is the plea taken by the appellants also. But the effect of this is that duty payable on the goods cleared by such 100% EOU would be the aggregate of customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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