TaxTMI 
TaxTMI 
2017 (2) TMI 522
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.... order-in-Original and rejected the appeal therefore appellant is before me. 2. Shri. Mahesh Raichandani, Ld. Counsel for the appellant submits that ld. Commissioner(Appeals) denied the refund of additional duty under Notification No. 102/07-Cus only on the ground that the duty was not paid at the time of the import and it was paid at the time of domestic clearance by EOU therefore there is violation of the condition of Notification No. 102/07-Cus. He submits that time of payment of duty is not relevant particularly in the present case. The appellant is an EOU. The goods imported by the EOU is under bond and remains under bond till it is cleared from the EOU, therefore at the time of clearance from EOU in the domestic market the clearance are treated as import in India and for that reason the duty is required to be paid. Therefore only on the ground that duty was not paid at the time of import, refund of additional duty paid in lieu of sales tax cannot be denied. The appellant have discharged VAT as can be seen from invoice. He placed reliance on the following judgments: (a) Adinath Trade Link Vs. Commissioner of Customs, Kandla[2013(293) ELT 746(Tri. Ahmd.)] (b) Meneta Automo....
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....od of dispute in this case is from 1-3-2008 to 31-7-2010 and 1-8-2010 to 31-3-2011. There is no dispute that during this period, the scrap was cleared into DTA and the appellant company were paying full duty under proviso to Section 3(1) of Central Excise Act, 1944 without availing the concessional rate of duty under Notification No. 23/2003-C.E. The duty being paid by the appellant on the DTA clearances was the Basic Customs Duty at nil rate under exemption Notification No. 21/2002-Cus. (Sl. No. 200) (in terms of which melting scrap is fully and unconditionally exempt from duty) plus additional customs duty equal to the Central excise duty leviable plus Special Additional Customs Duty (SAD) at nil rate plus Education Cess and Secondary and Higher Education Cess (S&H Cess). 1.2 There are three objections of the Department. 1.2.1 The first objection is that since the clearances were not being made in terms of para 6.8 (e) of the Foreign Trade Policy (FTP) 2004-2009, in as much as neither any standard input-output norms in respect of scrap had been fixed nor the ad hoc norms had been fixed by the Development Commissioner nor other conditions of para 6.8 (e) relating to clearance ....
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....00/- was also imposed on Shri Praveen Garg, Finance Head and Authorised Signatory of the appellant company under Rule 26 of the Central Excise Rules, 2002. Against this order of the Commissioner these two appeals have been filed. 2. Heard both the sides. 3. Shri B.L. Narasimhan, Advocate, the learned Counsel for the appellant, pleaded that so far as the issue relating to method of calculation of education cess and S&H cess is concerned, the same stands decided in the appellant s favour by Larger Bench judgment of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. v. CCE, Jaipur-II reported in 2013 (290) E.L.T. 372 (Tri.-LB), that as regards the question of Basic Customs Duty exemption in respect of scrap under Notification No. 21/2002-Cus. (Sl. No. 200), in terms of this exemption notification, the melting scrap is fully and unconditionally exempt from duty, that this exemption from Basic Customs Duty to melting scrap is not linked with DTA clearances being made in accordance with para 6.8(e) or 6.8(a) of the Foreign Trade Policy or otherwise, that in this case the appellant had made clearances of scrap into DTA by paying full duty leviable in terms of proviso to Section 3(1....
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....order by reiterating the findings of the Commissioner in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. As regards the dispute regarding the calculation of education cess and S&H cess, we find that this issue stands settled in favour of the appellant by the Larger Bench judgment of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. v. CCE, Jaipur-II (supra). In view of this, the part of the duty demand based on this issue is not sustainable and has to be set aside. 7. As regards the exemption from Basic Customs Duty under Notification No. 21/2002-Cus. (Sl. No. 200) in respect of Steel scrap cleared into DTA, this exemption notification exempts fully and unconditionally, the melting scrap imported into India. In respect of the DTA clearances of scrap made by the appellant, the duty is payable in terms of proviso to Section 3(1) of Central Excise Act, 1944 and the quantum of this duty payable would be the Basic Customs Duty plus Additional Customs Duty plus Special Additional Customs Duty (SAD) plus education cess & S&H cess. Notification No. 23/2003-C.E. prescribes the concessional rate of duty in respect of DTA cle....