TaxTMI 
TaxTMI 
2018 (8) TMI 315
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....of Notification No.29/2004-CE dated 09.07.2004 issued under Section 5A of the Central Excise Act, 1944. Department took the view that respondent is not eligible to benefit of Notification No.29/2004 on the ground that a notification issued under Section 5A of the Act cannot be made applicable to EOUs unless it is specifically provided in the notification, therefore according to Revenue, CVD has to be calculated @ 8% which is the tariff rate prescribed under the Central Excise Tariff Act. Accordingly, show cause notice was issued which, after due process of law, was adjudicated by the adjudicating authority confirming the proposals made in the SCN. On appeal, the Commissioner (Appeals) set aside the order of original authority and allowed th....
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....qual to the duty leviable under Notification No. 29/2004 or 30/2004 as may be applicable. The objection raised by the Revenue is that the benefit of this Notification will not be applicable in view of the proviso to Section 5A(1) of the Central Excise Act, which is reproduced above. We find that there has been total mis-appreciation of this provision of law. Section 5A(1) only grants power to exempt excise duty leviable under Section 3(1) of the Central Excise Act. The proviso to Section 5A(1) is only to state that even if there is exemption from Central Excise duty under Section 3(1) on any goods produced in India, it will not imply that the exemption from Central Excise duty will also be automatically available on goods produced and clear....
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....urpose of computing the duties payable by a 100% EOU unit while making DTA clearances, stands settled by the judgment of the Delhi High Court in the case of Plastic Processors v. Union of India - 2002 (143) E.L.T. 521 (Del.) which has expressly been upheld by the Hon'ble Supreme Court in Union of India & Others v. Plastic Processors & Others - (2009) 12 SCC 747 = 2005 (186) E.L.T. A27 (S.C.)." 5.5 Similar view was taken in Shanta Biotechnics Ltd (supra). The relevant portion read as under : " 7. The issue involved in this case is whether the duty payable by the assessee respondent shall be determined exactly in the same manner as is done in respect of imported goods, as the clearances effected by the assessee respondent is....
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.... v. Plastic Processors [2005 (186) E.L.T. A27 (S.C.)]. The Apex Court maintained the decision of the Delhi High Court that CVD was payable at effective rates and not at tariff rate on clearances by a 100% EOU into the DTA. The Delhi High Court [2002 (143) E.L.T. 521 (Del.)] had disposed of certain writ petitions challenging the legality of Circular No. 38/2000-Cus. dated 10th May, 2000 issued by the Central Board of Excise & Customs, issued to clarify doubt regarding levy of Additional Duty of Customs (CVD) 8 on Domestic Tariff Area (in short DTA) sale of reprocessed plastic agglomerates/granules (reprocessed out of plastic scrap) by Export Oriented Units (in short EOU)/Export Processing Zone (in short EPZ) units. In paragraph 3 of the circ....
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....ng leviable on a like article if produced or manufactured in India. This position was also elaborated in Thermax Private Limited case (supra). 9. In essence, what has to be imagined is that importer had manufactured the goods in India and then the amount of excise duty that he would have called upon to pay in that event has to be determined. 10. In view of the above discussion, the inevitable conclusion is that the impugned circular is not in accordance with law, direction contained in it to make assessment in a particular fashion only is indefensible. In the result, impugned Circular No. 38/2000-Cus. dated 10th May, 2000" is quashed to the extent it imposes the liability of CVD." (b) CCE Jaipur v. Maiden Trading ....