AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 790
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....on filed by appellant-Revenue for staying operation of the impugned order is disposed of. 2. The facts of the case are that respondent-assessee are engaged in the manufacture and export of 'Hollow Glass Ware' (Bottles/Jars etc.) under 100% EOU scheme. They obtained Central Excise Registration and were selling their products into DTA on payment of full rate of duties as per the provisions of Foreign Trade Policy. Subsequently, the respondent opted out of the EOU scheme and obtained EPCG license and started paying central excise duty on the DTA clearances @ 12.36% as done by any other DTA unit. However, the lower authorities ordered that the respondent was liable to pay central excise duty in terms of the proviso to Section 3 (1) of ....
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....f the department can be summarized as under : (a) In terms of proviso to Section 3 (1) of the Central Excise Act, 1944, the clearances into the DTA have to be subjected to aggregate duties of customs and the valuation for the purpose of assessment of customs duty has to be determined in terms of Customs Act, 1962. (b) Going by the provisions of Section 14 of Customs Act, 1962, the transaction value shall form the basis for assessing the duty, i.e. the sale consideration shall be the basis for calculating the duty. Further, in terms of proviso to Section 14 (1) supra, it can be seen that the transaction value does not include customs duty. Hence it is evident that there is no scope to calculate the Customs duty by considering the sale pr....
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....ated to clandestine removal and in that context the Tribunal noted that the facts of the case were similar to the case of Sarla Polyester Ltd. Vs CCE Surat-II 2008 (222) ELT 376 (Tri.-Ahmd.) which also related to clandestine removal by EOU and wherein the Tribunal held that the cum-duty value was not applicable to clandestinely removed goods. 6. Heard both sides and have gone through the facts of the case. 6.1 Main contention of the appellant-Revenue is that the prices indicated in the invoices of the respondent-assessee are required to be considered as transaction value, hence lower duty adopted therein is incorrect. Since break up of taxes is indicated separately in such invoices, the cum duty price cannot be extended in such cases. Ar....
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.... duty leviable on the DTA clearance of 100% EOU and this measure is the aggregate of the duties of customs on the import of like goods into India and if the rate of duty is ad valorem, duty is to be calculated on the value determined under the provisions of Customs Act, 1962 and Customs Tariff Act, 1975. In fact a Larger Bench of the Tribunal in the case of Vikram Ispat reported in 2000 (120) E.L.T. 800 (Tribunal-LB) has held that the duty chargeable on the DTA clearance of a 100% EOU is a central excise duty and the method adopted by the law makers in recovering this duty cannot alter its character and what the proviso to Section 3(1) of Central Excise Act, provides is only the measure of the central excise duty leviable on the DTA clearan....
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.... by assessee, the latter intimating the department that they would pay excise duty at 23.896% although they were collecting the same only at 12.36% from their customers. From this it is evident that the assessee although discharged and collected lower than applicable duty liability, however they have cleared these goods under invoices and there was no fraudulent intention in such omission. 6.6 We find that Nagareeka Exports Pvt.Ltd. case [2003 (159) ELT 891 (Tri.-Mum.) has been relied upon in a subsequent decision of the Tribunal in the case of Asian Alloys Ltd. Vs CCE Delhi-III 2006 (203)ELT 252 (Tri.-Del.) where the Tribunal distinguished the clandestine removal from other types of DTA clearances. Even in the decision of Hon'ble Supreme ....
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....ation of paying all taxes on the goods sold and in such a case the said taxes on the goods sold are to be deducted under Section 4(4)(d)(ii) and this is precisely what has been directed by the Tribunal. There is also nothing to show that the sale price was not cum-duty." 6.7 What therefore comes to the fore is that Assessee made straight forward clearances from the EOU to DTA, though at lower rate of duty discharged thereon than what was applicable. It is not the case of the department that respondent-assessee had removed the goods clandestinely or that they had collected from or reimbursed by, the buyers, the amount of differential duty that was paid by them subsequently on being advised by department. Respondent-assessee has also not col....