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TMI Blog2004 (12) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... 188/93, dated 27-12-1993 and 196/94, dated 8-12-1994 for use in their Aquaculture Project subject to the condition that the goods would be used for the production of aquaculture products, which would be exported out of India. In case of DTA sale, as per the Policy, the permission of the Development Commissioner is necessary. The Revenue proceeded against the appellant on the following grounds. 3.They produced and sold 11,15,29,540 nos. of Shrimp Seeds and 48,365 kgs. of Shrimps during the period from 1994-95 to 1997-98 in the DTA without obtaining the permission of the Development Commissioner, without issuing proper invoice under Rule 100E and without paying Central Excise Duty. The Commissioner, invoking proviso to Section 11A of the CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 3 would include only products fit for human consumption and not otherwise. He relied on the Note 1 (b) of Chapter 3 which is reproduced below : "(b) Fish (including livers and rose thereof) or crustaceans, mollusks or other aquatic invertebrates, dead and unfit or unsuitable for human consumption by reason of either their species or their condition (Chapter 5); flours, meals and pellets of fish or of crustaceans, mollusks or other aquatic invertebrates, unfit for human consumption (Chapter 23)." In view of the Chapter Note, Shrimp Seeds could be excluded from the purview of Chapter 3. In other words, the goods are not excisable. If they are not excisable, there is no question of payment of duty. Hence, the demand of duty on Shrimp Seeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded from the scope of Chapter 3. She said for exclusion from Chapter 3, the item should be dead and unfit for human consumptions. It is not sufficient if the item is only unfit for human consumption. It should be dead also since the seeds are live, they would not come under the exclusion clause and would be rightly classifiable under Chapter 3. She reiterated the findings in the OIO. 7.We have heard the rival contentions. The Commissioner, after classifying the Shrimp Seeds under Chapter 3, has worked out the amount equal to the aggregate of the Customs Duty leviable as per proviso to Section 3(1) of the CE Act, 1944 and demanded the same. It is on record that for clearing the Shrimp Seeds, no permission was taken from the Development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission of the Competent Authority was not taken while clearing the above goods, the above mentioned ruling of Tribunal in Sam Spintex case would be squarely applicable. Moreover, the demand itself is time barred as there is no convincing evidence for suppression of facts. In view of the above observations, the OIO is liable to be set aside. 9.However, before concluding, we have to give our finding with regard to the Revenue's appeal. Revenue's appeal 10.Two issues are involved in the Revenue appeal. One relates to the valuation adopted by the Commissioner. The second issue relates to the levy of penalty under Section 11AC and interest under 11AB for the entire period of the alleged offence. Since the Party's appeal has been allowed, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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