TMI Blog2005 (5) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 1A along with penalty. The Jurisdictional Asstt. Commissioner had confirmed the demands under Section 11A of the Central Excise Act read with Section 28 of the Customs Act, 1962. In appeal the CCE relying upon - (i) Commissioner (Appeals)'s order in case of Shrishti Impex Pvt. Ltd. where in the Commissioner after discussing the provision of notification 125/84-C.E., dated 25-5-84, the scope of the term "such goods if allowed to be sold in India" interpreted by Apex Court in SIV Industries Ltd. had granted the benefit of Notification 125/84 exemption the logic was not found fault with for this case. (ii) In CBEC Circular No. 618/9/2002-CX., dated 13-2-2002, Board has mentioned that in view of the Apex Court judgment the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Larger Bench) has been held to be not good law. (iii) Confirmation of the demand under Section 11A read with Section 28 of the Customs Act should not render the demand bad quoting of wrong section should not initial the proceedings made under Section 11A of Central Excise Act, 1944 the SCN notice issued for demand of Central Duty should not initiate the proceedings. 1.3 Appeal Nos. 1598/98 to 1600/98 are filed by the same assessee who is Respondent, in Revenues appeal Supra its Director buyers against the order of Commissioner who pursuant to a show cause notice dated 2-11-2001 determined duty under Section 11A(2) imposed penalty under Rule 209 on the 100% BOU under Rule 209A on the Director the buyer since he found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether with the permission or without the permission of the Development Commissioner would attract duty in terms of the provision to Section 3(1) of the Central Excise Act..." was not upheld by the Apex Court in Civil Appeal they remitted the matter after setting aside the judgment in Civil Appeal Nos. D12500 12499 of 2004 as reported in 2005 (179) E.L.T. A100 (S.C.) by an order which reads as - Delay Condoned. Appeal Admitted. Heard Parties. Impugned judgment is set aside. The matter is remitted back to the Commissioner for consideration not only the rate but also to decide the question whether the respondent is entitled to exemption keeping in mind the aspect as to whether the goods have or have not been manufactured from ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 393 (T)] = 2005 (120) ECR 32 (Tri.-Bang.)] where in para 7 the Tribunal held as - "7..... the clearance to DFRC holders (ARC) Holders against foreign exchange cannot come within the purview of the category of goods allowed to be sold in India in view of the restrictive interpretation of the expression ''allowed to be sold in India" by the Hon'ble Supreme Court in the SIV case. The clearance to DFRC holders and also to suppliers against foreign exchange cannot be treated as per with the clearance permitted by the Development Commissioner for sale to DTA. Since suppliers in DTA against foreign exchange covered by para 9.10(b) shall be content against NFEP/EP; these clearances cannot suffer central excise duty. Hence, Notification No. 125/8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against DFRC are not covered by the relevant para of the EXIM Policy applicable to DTA sales permissible and 'allowed to be sold' as interpreted by the Hon'ble Supreme Court. DFRC removals are not within the 25% quota. When the provision of the policy Paras 9.9, 9.10 and Chapter 10 and Appendix 42 of the EXIM Policy are read and the fact that as per Appendix 42, DFRC removals under Chapter 10 i.e. para 10 onwards would count towards determining the 25% of production of an EOU, which is 'allowed to be sold' in DTA vide para 9.9, therefore clearance under para 9.9 and para 9.10 and/or para 10 of the EXIM Policy cannot be equated. Notification No. 125/84 which very clearly exempts 'all goods manufactured in an EOU' from the levy under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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