2009 (5) TMI 715 - AT - Central Excise

EOU goods not eligible for exemption under notification No. 125/84-C.E.

The Tribunal dismissed the appeal, affirming that goods cleared by a 100% Export Oriented Unit (EOU) with the Development Commissioner's permission are to ... Export Oriented Unit, 100% EOU Issues:1. Eligibility for exemption under notification No. 125/84-C.E. for goods cleared from 100% EOU without permission.2. Assessment of goods under Section 3(1) or the proviso to Section 3 of the Central Excise Act.Analysis:Issue 1: Eligibility for exemption under notification No. 125/84-C.E. for goods cleared from 100% EOU without permission:The Tribunal considered whether goods cleared from a 100% Export Oriented Unit (EOU) clandestinely and without permission are eligible for exemption under notification No. 125/84-C.E. The appellant's advocate acknowledged that the key issues were answered against the appellant's case. Reference was made to a previous case, Jaipur Golden Transport Co. Pvt. Ltd. v. CCE, Surat, where similar issues were discussed. The Tribunal noted the conflicting decisions in various cases but ultimately referred to the decision of the Larger Bench, which held that goods cleared by a 100% EOU and sold in India with the Development Commissioner's permission shall be assessed under the proviso to Section 3(1) of the Central Excise Act, and the exemption notification would not be applicable. The Tribunal found that the appellant's case did not present any distinguishing factor to deviate from the Larger Bench's decision, leading to the dismissal of the appeal.Issue 2: Assessment of goods under Section 3(1) or the proviso to Section 3 of the Central Excise Act:The second issue revolved around whether the goods in question should be assessed under the provisions of main Section 3(1) of the Central Excise Act or under the proviso to Section 3. The Tribunal emphasized that the goods, even if stolen during transit, did not alter the liability to pay duty or the mode of assessment. Citing the precedent set by the Larger Bench in Jaipur Golden Transport, the Tribunal concluded that the matter at hand aligned with the decision of the Larger Bench. Consequently, the appeal was deemed liable for dismissal and was dismissed accordingly.In conclusion, the Tribunal upheld the decision against the appellant, emphasizing the application of the proviso to Section 3(1) of the Central Excise Act for goods cleared by a 100% EOU with the Development Commissioner's permission, and the inapplicability of exemption notification No. 125/84-C.E. The judgment highlighted the importance of consistency in legal interpretations and adherence to precedents set by higher benches in resolving similar issues.