2017 (1) TMI 1281

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....filed by the appellant-assessee and others as well as Revenue against a common Order-in-Original No. 11/MP/2002 dated 21.3.2002. 2. The brief facts of the cases are that during the year 2000, the appellant-assessee M/s Sarla Polyester Limited., an 100% EOU, cleared the goods in DTA without proper permission from the appropriate authority. The demand notice was issued to M/s Sarla Polyester Limited for recovery of the central excise duty under the proviso to Sec.11A of the Central Excise Act,1944 equal to the aggregate duty of customs leviable under Section 12 of Customs Act,1962 in accordance with proviso to Section 3(1) of CEA, 1944 and other laws for the time being in force along with proposal for penalty and also personal penalty on oth....

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....f duty on clearance by an 100% EOU in DTA with out proper permission from the appropriate authority, for the period prior to the amendment to Sec.3(1) of CEA,1944, observed as: "34. It is necessary to state here that after so stating the Court also noted that after pronouncement of the decision in SIV Industries Ltd. (supra), the circular was issued on 13-2-2002 clarifying the position. Interpreting the said circular, the Court held :- 19. As aforesaid, according to the Exim Policy 1992-1997 read with Appendix XXXIII of the Handbook of Procedures, an EOU may sell 50% of its production in value terms into a DTA only on issuance of a removal authorisation by the Development Commissioner. 20. In the instant case, admittedly at the time o....

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....dated 5-1-2004 was not brought to the notice of this Court. The Court in NCC Blue Water Products Ltd. case had not based its conclusion on the basis of the circular dated 13-2-2002. It is clear as day that it has concurred with the ratio laid down in SIV Industries Ltd. (supra). It has been clearly opined that the expression allowed to be sold in India used in proviso to Section 3(1) of the Act would be applicable only to sales made in DTA of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. 36. The said authority has also made it clear that the circular issued in 2002 is in consonance with the authority in SIV Industries Ltd. (supra). Thus, the view expressed by NCC Blue Water ....