2014 (11) TMI 154

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....t and penalties of rs.50 lakhs and Rs. 2 lakhs under Rule 25/26(2)(ii) of the Central Excise Rules, 2002. The demands have been issued both for extended period and normal period of limitation. 2. The facts are that the appellants are a 100% EOU and manufacture "Fatty Acids", "Fatty Alcohols" and "Soap Noodles". Apart from export, they also cleared goods in the Domestic Tariff Area (DTA) to third parties as well as to their own units. The clearances into DTA are under concessional rates of duties provided in Notification 23/2003 dated 31.03.2003. The goods manufactured and cleared by an EOU into DTA attract levy of Central Excise duty under Section 3 of the Central Excise Act, 1944. Under proviso to Section 3 ibid, the amount of excise duty....

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....toms leviable under sub-section (5) of the Section 3 of the said Customs Tariff Act shall be included if the goods cleared into Domestic Tariff Area are exempt from payment of sales tax or value added tax. 2                  ANNEXURE (for conditions to notification) Sr. No Conditions 1 If the goods being cleared into the Domestic Tariff Area are not exempt by the State Government from payment of sales tax or value added tax,   2.1 The appellants did not pay Special Additional Duty under Section 3(5) of the CTA claiming exemption as per Table above in respect of clearances of finished goods to their own units in DTA on stock transfer. Revenue was of th....

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....ss, the Advocate's contention is that the duty paid under proviso 3 of the Central Excise Act, 1944 is Central Excise duty and not Customs duty. It was also argued that there are no grounds alleging suppression as it is only a case of interpretation of law. The appellant relied on Authority for Advance Ruling in the case of GE India Industrial P. Ltd. v. CC - 2013-TIOL-01-ARA-Cus. 5. On the other hand, the learned A.R. vehemently stated that exemption under Notification 23/2003 is not available since sales tax is not leviable on inter-unit transfer and therefore it cannot be said that the goods are in exemption by the State Govt. from payment of sales tax when the sales tax itself is not leviable. He also relied on the case of Moser Ba....