TaxTMI 
TaxTMI 
2015 (10) TMI 967
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....velopment Commissioner, SEEPZ on 29.8.2003 agreed in principle for conversion of the unit from 100% EOU to DTA. However, before conversion, the appellant is required to pay customs and excise duty liability etc. which was done some time in 2004. In between during the period 15.9.2003 to 25.9.2003, the appellant manufactured certain goods and cleared in DTA. While clearing the goods in DTA, the appellant paid the duty as per the main provision of Section 3 of the Central Excise Act, i.e. they paid duty as is applicable to a normal DTA unit. The Revenue was of the view that since the EOU has not been converted into DTA as yet, they are required to pay the duty as per clause (ii) to proviso to Section 3(1) of the Central Excise Act, i.e. the d....
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....of the Central Excise Act. However, since the invoices are available, the amount collected from the customer should be considered as cum duty price of the value and the goods should be worked out backwards and the duty on that count be charged and not on the value shown in the invoices issued by them. The learned counsels second submission was that the penalty on appellant No.1 has been imposed under Section 114A. In this particular case, the demand is under Section 11A(1) and therefore there is no question of penalty under other Act and in support of the said contention, he quoted the judgment of this Tribunal in the case of Saheli Synthetics Pvt. Ltd. vs. CCE reported in 2002 (139) ELT 594 (Tri-Mum.). It was also submitted that the said ....
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....goods as per main Section 3(1). Further, appellant No.1 had also made an application to the Assistant Commissioner to execute a bank guarantee for the differential duty, which was rejected. Even then, the appellant continued to clear the goods under the main Section 3(1). Under the circumstances, it is a case of not obeying the law. Further, it was submitted that the penalty was proposed under Section 11AC of the Central Excise Act/Section 114A of the Customs Act and it is only a typographical mistake in the order that only Section 114A is mentioned. He further submitted that since appropriate duty was not paid on the goods, this was confiscable under Rule 25 and, therefore, the confiscation and penalty imposed on appellant No.3 is in order....
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....d or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975)." Thus in the case of DTA clearances from a 100% EOU, the value is required to be determined in accordance with the provisions of the Customs Act, 1962. Section 14 of the Customs Act deals with valuation of the goods. In the case of import, the value of the goods is CIF value and it is the transaction value between the foreign supplier and a buyer in India. Thus for....
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.... that in the show cause notice, both the sections were invoked. Moreover, the two sections are pari materia and exactly same. In these circumstances, we do not consider that the mention of Section 114A is fatal to the case. However, we observe that the penalty under Section 11AC can only be imposed if the ingredients provided under the said section are satisfied. The ingredients provided under Section 11AC are fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or the Rules made thereunder with intent to evade payment of duty. We find that none of these ingredients are present in the facts and circumstances of the present case. The fact that the appellant was paying duty ....