TaxTMI 
TaxTMI 
2010 (7) TMI 334
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.... facts in brief that arise for consideration are : During the course of audit of the unit, it came to notice that they made clearances of the said products in the DTA and have discharged payment of duty claiming the benefit of notification No. 23/2003-C.E. dated 31-3-2003 as amended from time to time. As per the provisions contained in proviso to Section 3(1) of the Central Excise Act, 1944, the duty payable on the goods cleared into DTA by a 100% EOU is the aggregate of the duties of Customs leviable on like goods as if the goods are imported into India. The aggregate of the duties of Customs, in the case of said products, comprises Basic Customs Duty (BCD), Additional duty of Customs under Section 3(1) of the Customs Tariff Act 1975 (CVD....
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....d imply that the exemptions under relevant Customs Notification and Excise Notification, if any, has to be given. It is his submission that the exemption granted under Notification No. 04/2006-C.E. dated 1-3-2009 is granted under sub-section (1) of Section 5A of the Act and a combined reading of Section 3(1) of the Act and the provisions of Section 5A indicate that the exemption granted under Notification 4/2006-C.E. is not available to the goods cleared to DTA by a 100% Export Oriented Unit. Such exemption has not been specifically extended to them. It is his submission that it is settled law that the provisions of a Section of the Act cannot be interpreted in a way to make other provisions of the Act null and void. It is his submission th....
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....e Customs Act, or any other law in force, on like goods produced or manufactured outside India, if imported into the country. In other words, the duty payable shall be determined in exactly the same manner as is done in respect of imported goods. This implies that for determining the duties of excise under proviso to section 3(1) of the Central Excise Act, 1944 on the goods cleared to the DTA by the EOUs, the exemption under the relevant Customs Notifications and Excise Notifications, if any, have to be provided. Therefore, I am of the view that the assessee is liable to pay only the effective rate of Additional Duty of Customs under section 3(1) of the Customs Tariff Act on clearances of the goods into the DTA. This view is supported by th....
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....r EOUs/EPZ units are liable to pay, among other duties, excise duty equivalent to CVD payable on imported reprocessed plastic materials (e.g. plastic granules/agglomerates) in respect of their DTA clearances of such materials/goods." The Delhi Court relied upon the decisions of the Supreme Court in Hyderabad Industries [1999 (108) E.L.T. 321 (S.C.)] and Thermax Private Limited [1992 (61) E.L.T. 352(S.C.)] and held as under : "8. As observed in the aforesaid quoted portions by the Apex Court, for the purpose of attracting additional duty under Section 3 of the Tariff Act, on the import of a manufactured or produced article, the actual manufacture or production of a like article in India is not necessary. Said provision specifically m....
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....n the earlier decision of the Hon'ble Gujarat High Court in the case of Varsha Exports and Others v. UOI and Others - 2000 (40) RLT 9 (Guj.) and letter F. No. 305/113/94-FTT, dated 19th February, 1998 of the Central Board of Excise and Customs, to hold that the additional duty of Customs (CVD) was payable at effective rate and not at tariff rate in the case of clearance of goods by an 100% EOU in the DTA. Appeal filed by the department in Supreme Court against the decision of the High Court, was dismissed. The Tribunal also relied on Board's clarification in letter F. No. 305/113/94-FTT dated 19th February 1998 which laid down that effective rate of duty was payable." 8. It can be seen from the above reproduced findings of the Adjudi....