TaxTMI 
TaxTMI 
2018 (6) TMI 379
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....Appellant Company) are a 100% EOU engaged in the manufacture of Polyester Cotton yarn and Polyester blended yarn falling under sub-heading no.5505.10, 5515.20, 5202.10, 5202.99, 5509.21 and 5509.22 of the Central Excise Tariff for export. Shri S.K. Chabra is the Managing Director of the appellant company and Shri S.V. Sharma is the Asstt. General Manager of the appellant company during the period of dispute. The period of dispute in this case is from October, 2001 to March, 2006. The appellant during this period, in addition to clearing the finished products, 'spun yarn' for export, were also making DTA clearances of cotton waste. The Director General of Central Excise Intelligence initiated investigation in respect of the value of DTA clea....
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....clearances in excess of the ceiling were not eligible for concessional rate of duty and would attract duty at the normal rate in terms of the proviso to Section 3 (1) of the Central Excise Act, 1944. It is on this basis that show cause notice dated 1.12.2006 was issued to the appellant company, its Director, Shri S.K. Chabra and its Asstt. General Manager, Shri S.V. Sharma for - (a) recovery of the central excise duty including education cess amounting to Rs. 437.73 lakhs along with interest thereon under Section 11 AB; (b) imposition of penalty on the appellant company under Section 11 AC of the Central Excise Act, 1944 and (c) imposition of penalty under Rule 26 of the Central Excise Rules,2004 on Shri S.K. Chabra, Director and Shri....
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....on behalf of the assessee, Director and AGM are that on the basis of allegation of under-valuation of DTA clearances, SCN dated 04.09.2006 was issued which came to be decided by the Settlement Commission, directing the assessee to pay differential duty amounting to Rs. 1,28,22,150/-. However, for the same offence, the Revenue has issued another SCN dated 01.12.2006 wherein duty demand totally amounting to about Rs. 437.73 lakhs has been made. The decision of the Apex Court in the case of M/s Nizam Sugar Factory Vs Commissioner 2006 (197) 465 (S.C.) was cited to support the argument that when all the relevant facts were in the knowledge of the authorities when first SCN was issued, while issuing second and third SCNs, same facts could not be....
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....issue regarding DTA sales entitlement has been decided in the recent case of Commissioner Vs STI India Limited-2017 (347) ELT 294 (Tri.Del.) In the above decision, the Tribunal held that the value of cotton waste which stands exempted from duty is not required to be counted for DTA sales entitlement. Accordingly, he submitted that the Revenue appeal is without merit. 9. Heard both sides and perused the record. 10. The original allegation investigated by DGCEI was that the appellant has under-valued the clearances made in DTA in respect of cotton yarn. After the issue of SCN in this regard, dated 04.09.2006, the appellant approached the Settlement Commission which settled the dispute. Accordingly, the appellant paid differential duty amoun....
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....s Nizam Sugar Factory (supra) decided by the Hon'ble Supreme Court stands cited in support. We find considerable force in the argument advanced by the appellant. The allegation of under-valuation was investigated by the Revenue resulting in SCN dated 04.09.2006. On the basis of the known facts, Revenue was already in a position to re-compute the overall ceiling of DTA clearances by adding the quantum of under-valuation detected, but Revenue failed to do so. For such re-computing and raising the revised demand, a further SCN dated 01.12.2006 has been issued in which the allegation of suppression has been made once again. In the circumstances of the case, we are of the view that the decision of the Hon'ble Supreme Court in the M/s Nizam Suga....
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.... case of M/s Nahar Industrial Enterprises (supra) is applicable for the Exim Policy, in force, prior to 01.04.2001. The decision in the case of M/s STI India covers the subsequent period and hence is applicable to the facts of the present case. The Tribunal observed in the case of M/s STI India as under: "4. We have heard the ld. AR for the Revenue and the ld. Counsel for the respondents. The respondents have filed cross appeal also in these cases. The lower authorities examined the legal provisions as per Para 9.9 and 9.20 of Exim Policy 1999-2002 and Notification Nos. 23/2003-C.E. The original authority relying on the Final Order No.A/723-724/2012-Ex, dated 26.05.2012 [2012 (284) E.L.T. 572 (Tribunal)] of the Tribunal held that obtainin....