AI Drafter 
TaxTMI 
TaxTMI 
2020 (9) TMI 660
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.... of Cotton and Synthetics Blended Yarns falling under Chapter 52 of the Central Excise Tariff Act, 1985. They have been granted Letter of Permission (LOP) dated 28.10.1994 for setting up a 100% EOU and accordingly also granted Warehouse license. They have executed B-17 Bond for various values on time to time in compliance with the provisions of Section 59 of the Customs Act, 1962. The appellants have imported two DG Sets of Caterpillar Make and Model No. 3508 falling under Chapter Heading 8502.13 of the Customs Tariff Act, 1975 valued at Rs. 38,18,861/- and Rs. 38,61,281/- against Bill of Entry No. 13454 dated 30.7.1997 and 8173 dated 22.10.1997 without payment of duty availing the benefit of Notification No. 53/97- Cus dated 3.6.1997 as am....
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....the learned AR for the Revenue reiterating the grounds of appeal submitted that the assessee did not have the permission of Development Commissioner for clearance of two DG Sets as the EPCG license was not issued by the DGFT as on the date of such application. It is his contention that since the EPCG License was not available with them, therefore, they approached the Development Commissioner for permission to clear the said goods in DTA. He has further submitted that the respondent had subsequently applied for EPCG License and cleared the goods availing concessional rate of duty. It is his contention that since no permission was obtained from the Development Commissioner, therefore, the adjudicating authority has rightly confirmed the deman....
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....olete in DTA to EPCG License holders at concessional rate of duty. 7. We find that the adjudicating authority simply denied the benefit of Notification No. 53/07-Cus dated 3.6.1997 observing that the respondent had not procured the necessary permission from the competent authority i.e. Development Commissioner to clear the goods in DTA by availing the concessional benefit under EPCG Scheme. The learned Commissioner (Appeals) has elaborately dealt with the said finding of the adjudicating authority. After applying the Circular issued from time to time, the learned Commissioner (Appeals) has observed as under: - 11. I find that the appellants in this case have been permitted by the Development Commissioner, SEEPZ, vide letter No. ....
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.... 11.4 The only factor in dispute is the rate of duty or the eligibility of the exemption to the appellants. In this regard I find that D.G.F.T vide their Policy Circular No. 5(RE-2005)/2004-2009, dated 13.05.2005, has clarified as under:- "Attention is invited to para 6.9(a) of Foreign Trade Policy, 2004-09, in terms of which supplies by EOU/EHTP/STP/BTP Units in the DTA under EPCG Scheme are counted for the purpose of fulfillment of positive NFE. Representations have been received drawing attention to the fact that in the absence of any specific Customs/Central Excise notification for exempting payment of Central Excise on such supplies, the units are facing difficulties in removal of goods from the EOUs. 2. The matter h....
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....Scheme at concessional rate are also applicable for clearances from EOUs subject to the fulfillment of conditions of the notifications." 11.6 Thus, from the foregoing clarifications issued by the Board and DGFT, it is apparent that clearness form EOU in DTA are also eligible for end use notifications such as the EPCG Scheme and concessional rate of duty is also applicable for the clearances made from an EOU. 12. In view of the foregoing discussion, it becomes evident that the appellants have cleared the 2 DG Sets in question bearing Sl. No. 2DN-00890 and DN-00915, under due permission for clearance into DTA as granted/permitted by the Development Commissioner, SEEPZ, vide letter No. SEEPZ/28/EOU/77/99-2000/ Vol-III/6....
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....cifically provided for in the notification itself. We, however, find that the Commissioner has failed to observe that even though what is required to be paid is in the nature of central excise duty but through a legal fiction, clearances by 100% EOUs have been placed at par with the imports and it is for this reason that the duty required to be paid is equal to the aggregate of Customs duty payable on such like goods if produced or manufactured outside India and imported into India. Therefore, all clearances by 100% EOUs have to be treated as imports for the purpose of calculating the duty. What is required to be determined / quantified is the Customs duty and not the Central Excise duty. Once Sec. 3A itself creates a legal fiction of levyi....