TaxTMI 
TaxTMI 
2021 (11) TMI 654
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.... Eighteen Lakh Seventy Six Thousand Seven Hundred and Sixty Eight only) as below, raised vide various Show Cause Notices No. SCN No and Date Period Duty Demanded Duty Confirmed Duty Dropped 1. C.Ex./R-I/BSR- II/LavinoKapur/ SCN/2005 dated 21.03.2005 08.03.1999 to 31.03.2000 4,40,382/- Nil 4,40,382/- 2. V.Adj (SCN)30-33/Th- II/05 dated 28.03.2006 02.04.2001 to 30.03.2003 14,69,428/- 33,042 14,36,386 3. V.Adj (SCN)30-49/Th- II/06 dated 05.07.2006 June 2001 to March 2006 1,12,02,687/- 1,12,02,687/- - 4. C.Ex./R-I/BSR- II/LavinoKapur /SCN/2006 dated 02.01.2007 April 2006 to September 2006 3,75,933/- 3,75,933/- - 5. C.Ex./R-I/BSR-II/ LavinoKapur/SCN/2007 dated 27.07.2007 October 2006 to March 2007 2,03,838/- 2,03,838/- - 6. C.Ex./R-I/BSR-II/ LavinoKapur/ SCN/2007 dated 21.02.2008 April 2007 to Sept 2007 4,79,826-/ 4,79,826-/ - 7. V.Adj (SCN) LavinoKapur / 118/BSR-II/08 dated 16.09.2008 Oct 2007 to Dec 2007 ....
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....red seventy seven only) as below on M/s. Lavino Kapur Cotton Ltd., Tarapur under the provisions of Rule 25 of the Central Excise Rules, 2001/2002. Sl No. SCN No and Date Penalty U/R 25 of CER 1. C.Ex./R-I/BSR- II/LavinoKapur/SCN/2005 dated 21.03.2005 Nil 2. V.Adj (SCN)30-33/Th-II/05 dated 28.03.2006 Nil 3. V.Adj (SCN)30-49/Th-II/06 dated 05.07.2006 Nil 4. C.Ex./R-I/BSR-II/LavinoKapur/SCN/2006 dated 02.01.2007 2,94,636/- 5. C.Ex./R-I/BSR- II/LavinoKapur/SCN/2007 dated 27.07.2007 4,50,511/- 6. C.Ex./R-I/BSR- II/LavinoKapur/SCN/2007 21.02.2008 3,84,837/- 7. V.Adj (SCN) LavinoKapur /118/ BSR-II/ 08 dated 16.09.2008 2,42,089/- 8. V.Adj (SCN) LavinoKapur /165/ BSR- II/08 dated 19.01.2009 3,55,425/- 9. V.Adj (SCN) LavinoKapur /1237/ BSR- II/08 dated 06.05.2009 2,17,816/- 10. V.Adj (SCN) LavinoKapur /93/ BSR- II/09 dated 24.09.2009 3.09,876/- 11. V.Adj (SCN) LavinoKapur /136/ BSR- II/09 dated 10.11.2009 3.57,062/- 12. V.Adj (SCN) LavinoKapur /143/ BSR- II/09 dated 02.12.2009 ....
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....ide Final Order No A/88053-88061/17/EB dated 19.06.2017 for reconsideration of entire issue in light of the decision in case of C T Cotton [2012 (284) ELT 572 (Trib Delhi)]. Remanding the matter back, tribunal observed as follow: "4. We have carefully considered the submissions made by both the sides before going to the merit of the case, we find that as per the submission of the Ld. Counsel and the finding of the impugned order. There are grave inconsistencies on the vital fact, such as the Ld. Commissioner has not considered the raw material imported and indigenously procured, this aspect is very significant to decide the dutiability on the cotton wastes and droppings. Similarly, the various issues raised by the appellant in his submissions was not considered properly by the adjudicating authority. The issue appears to be identical to the case of C.T. Cotton Yarn Ltd. (supra) which was decided by the Tribunal after remand from the Hon'ble Supreme Court however, the Ld. Commissioner has no occasion to deal with this judgement. It is also observed that in the case of C.T. Cotton Yarn Ltd. (supra) the appeal was allowed not only on the merit, but also on the limitation therefore ....
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....T Cotton, wherein Tribunal had held that obtaining soft cotton waste, in course of carding and combing of ginned cotton does not amount to manufacture as no new product with distinct name, usages and character emerges. Appellant is engaged in manufacture of absorbent cotton from indigenous cotton, indigenous cotton waste and imported comber noil. These raw materials undergo process of physical and chemical cleaning and carding which results in the generation of further cotton droppings/ waste which is essentially cotton waste mixed with dirt and rubbish and not a 'manufactured' product. They place reliance on the decision of the Supreme Court in the case of Indian Aluminum Co. Ltd. [1995 (77) ELT 268 (SC)]. • In the impugned order, it has been held that decision in case of C T Cotton Yarn Ltd is distinguishable as in the said case the indigenous raw material was consumed and not imported raw material. The distinction drawn by the learned adjudicating authority is not correct as both the cases are identical. Under main Section 3 of the Central Excise Act, 1944, as well as proviso thereto the excise duty can be levied "only on goods which are produced or manufactured". I....
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....be used in connection with the production or packing in accordance with the standard input/output norms. In the said notification it is further provided that such self-declared norms were to be taken till fixation of the final norms. As such the said notification would apply only for periods after 06.07.2007 and can have no application whatsoever for determination of excise duty and custom duty for the earlier period. • These two notifications were not referred in the original show cause notice dated 05.07.2006 issued by the earlier Commissioner of Central Excise as the said notifications came much later on 06.07.2007 and as such the adjudicating authority has gone beyond the show cause notice in justifying the levy of excise duty. These notifications were not brought to the notice of the appellant at any time. Thus the order for the periods subsequent to the notification is also bad in law. • DGFT had revised input/output norms in the case of the company vide their letter dated 28.5.2009, adjudicating authority has erred in applying the revised norms from 28.5.2009 when the appellant has sought revision of norms on 04.05.2006. The Assistant Development ....
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.... exported, are allowed to be sold in Domestic Tariff Area in accordance with the Export Import Policy also on payment of appropriate duty of excise leviable thereon u/s. 3 of the Central Excise Act, 1944. • The appellant has exported all the finished goods manufactured by it and is availing exemption under Para 1 of the said notification and the said para 3 has no application to it whatsoever. It is, therefore, submitted that the exemption availed under Tariff Notification No. 52/2003-Customs dated 01.03.2003 is in order and there is no contravention by the appellant company in that regard. • The CESTAT, Bangalore, in the case of Synergy Dooray Automotive Ltd. [2008 TIOL 682 (CESTAT Bangalore)] have upheld said interpretation of this notification. • As mentioned above, the cotton waste arising in the production process which were sold by the appellant was not a manufactured product and as such on clearance of the same, no excise duty was leviable and as such no permission was required. • Under Notification No. 6/97-CE, dated 01.03.1997 at Sr. No. 3 exemption is provided for goods falling under heading 52.02 produced or manufacture....
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.... 203.55 crores and against the same the domestic sales of finished goods for the said period was Rs. 0.86 crores only and the domestic sales of waste were Rs. 2.30 crores only and the company was granted DTA entitlement certificates as under:- For Year Ending Rs. Crores (Approx.) 31.03.2001 6.23 31.03.2002 9.49 31.03.2003 14.23 29.95 • Thus it is seen that domestic sales are negligible, only 1.13% of FOB and much below the 50% of FOB prescribed in the EXIM policy for various years. • The Department has sought to levy a tax on the difference between the weight of the raw material consumed and the weight of the finished goods produced viz. the absorbent cotton manufactured all of which has been fully exported after allowing 5% for wastage. This levy is illegal, wrong and incorrect because there is no provision for levying duty on mere theoretical differences and the duty of excise andThe FOB value of exports of the company for custom is levied only on goods manufactured and cleared for sale and for transportation to DTA unit. This method of levying duty on the difference between the inputs and outputs is erroneous because....
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....otton Waste generated for a manufacturer under this scheme is 5% of the raw cotton inputs used i.e. 50 gm of Waste to be generated for each 1.05 Kg raw cotton inputs. 4. The clearance of Waste is governed by Para 9.30 of Handbook of Procedures 1997-2002 , Para 6.8 (d) of the EXIM of the Foreign Trade Policy 2002-07 and Para 6.8 (e) of the Foreign Trade Policy 2007-12. They are produced here for reference : Para 9.30 of Handbook of Procedures 1997-2002: "(a) Waste/Scrap/remnants arising out of production process and in connection therewith , upto 5% of f.o.b. value of exports, may be sold in the DTA on the basis of records " Similarly the provisions of Para 6.8 (d) of the Foreign Trade Policy 2002-07 read with Appendix 42H of the Handbook of Procedures 1997-2002 and Para 6.8 (e) of the Foreign Trade Policy 2004-09 read with Appendix 14F of the Handbook of Procedures have been contravened by the Appellate They all have similar provisions that the Waste to Input Ratio for EOUs are fixed by statue and have to be followed strictly to avail any benefits under Foreign Trade Policy or the Central Excise Act. • The SCNs issued in this case are due to excessive....
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.... • A very important point to cover was that the Appellate has not declared the clearance of the waste to the Department but has cleared the Entire Waste was not under the prescribed procedure of issuing CE Invoices as per Rule 17 of the Central Excise Rules, 2002 but by using Private Invoices. This clearly shows an intent to defraud the Department from Revenue. Hence extended period has been rightly invoked. Reliance placed on following authorities: • The Bell Match Company [2019-TIOL-1117-HC-MAD- CUS], • Samsaa Rubber And Polymers Pvt Ltd [2019-TIOL- 2617-CESTAT-HYD], • K.I.International Ltd. [2012 (2) ECS (126 ) (Tri- Chen)], • CESTAT has remanded this case as the difference between indigenously procured and imported cotton was not considered by the OAA and has also said that the case of C.T. Cotton Yarns was not decided entirely on merit but also limitation issue as the SCN in CT Cotton (supra) was issued even beyond the extended period of five years. • Regarding the distinction between domestically procured and imported inputs, it was observed that the Appellant has indeed procured some inputs domestically b....
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....misdeclaration and excess generation of Cotton Waste has emerged only from a detailed investigation. • Section 3 of the Central Excise Act, 1944 has been amended w.e.f. from 11.05.2001 by substituting the words 'brought to any place in India' in place of 'allowed to be sold in India'. Hence, from 11.05.2001,all clearances to a DTA from an EOU is governed by Section 3 of the Central Excise Act, 1944.Section 3 provides for levy of duty equal to aggregate of the Duties of Customs on goods which are manufactured outside India and are imported inside India. The judgments relied upon by the Appellate are also from a period prior to May-2001 and hence are not applicable in the case after the amendment in Section 3 of the Central Excise Act, 1944. • The Impugned OIO has relied on the Lager Bench Judgement of Hon`ble CESTAT in Kumar Arch Tech Pvt Ltd. [2013 (290) ELT 372 (T-LB)] . Here, the Hon`ble Tribunal has upheld that for DTA Clearances of EOU, duty as per Section 3 of the Central Excise Act, 1944 has to be charged. The period in this matter was post May-2001. Also, this decision was followed in cases of 2015 (316) ELT 498, 2015 (327) ELT 514, 2015 (328) ELT 6....
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....and duty on the cotton waste cleared by the assessee, Hence, the benefit of the judgement of C.T. Cotton Yarn, which deals with the dutiability of Cotton Waste cannot be extended to the demand made vide the 3rd SCN and the subsequent periodical SCNs, since in these SCNs duty has been demanded on excess consumption of Comber Noil, leading to the excess generation of Cotton Waste and that there was no dispute regarding dutiability or non-payment of duty on cotton waste involved. Hence, I do not find it appropriate to apply the ratio of the aforesaid judgment to the instant cases, 28.4 Further even if it is considered that cotton waste generated is not a manufactured product as held by CESTAT in the case of CT Cotton Yarn, then Cotton Waste becomes non excisable. In Para 7 of Notification No. 53/97-Cus, it was laid down that where goods cleared into DTA were non excisable, Customs Duty equal in amount to that leviable on the inputs obtained under this Notification and used in production of such non excisable articles, which would have been paid, but for exemption under this Notification, shall be payable at the time of Clearance of such article. Thus, on the clearanc....
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....2009-2014. 29.1 Exim Policy, 1997-2002 Para 9.20 stipulates that scrap/waste/remnants arising out of production process or in connection therewith may be sold or disposed of in the DTA on payment of applicable duties. Appendix 42 of the Handbook of Procedures, 1997-2002 (e) An application for sale of goods, rejects, waste, scrap and remnants in DTA as per Para 9.9 and 9.20 of the Policy by the EOUS shall be submitted to the Development Commissioner of the EPZ concerned in the form given at Annexure A. The application shall be certified by an Independent Cost/ Chartered/Cost and Works Accountant and endorsed by the Bond Officer of Customs/ Central Excise having jurisdiction over the unit. The Development Commissioner of the EPZ concerned will determine the extent of the DTA sale admissible and issue a goods removal authorization in terms of value. An EPZ unit may effect sale in DTA on the basis of records maintained by it with prior intimation to Customs Authorities 29.2 EXIM Policy 2002-07 Para 6.8 (d) provides that scrap/waste/remnants arising out of production process or in connection therewith may be exported or sold in the DTA on payment of duties ....
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....OUs having status holder certificate can sell finished goods into under para 6.8(a) of Foreign Trade Policy under intimation to the concerned Development Commissioner and Jurisdictional Central Excise Authority in terms of Para 6.39.9 of Handbook". 1977 29.4 FTP 2009-14 Para 6.8 (e) states that scrap / waste / remnants arising out of production process or in connection therewith may be sold in DTA, as per SION notified under Duty Exemption Scheme, on payment of concessional duties as applicable, within overall ceiling of 50% of FOB value of exports. Such sales of scrap / waste / remnants shall not be subject to achievement of positive NFE. In respect of items not covered by norms, DC may fix ad- hoc norms for a period of six months and within this period, norms should be fixed by Norms Committee. Ad-hoc norms will continue till such time norms are fixed by Norms Committee. Sale of waste/ scrap/ remnants by units not entitled to DTA sale, or sales beyond DTA sale entitlement, shall be on payment of full duties. Scrap / waste / remnants may also be exported. The Appendix-14-1-H, sub-clause (e) of Para I of the Foreign Trade Policy and Handbook of Procedures 2009-14 read....
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....ed in column(3) of the Table below, and falling within the chapter heading No, or sub- heading No. of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), specified in the corresponding entry in column (2) of the said Table, produced or manufactured in an export oriented undertaking or an Electronic Hardware Technology Park (FHTP) Unit or a Software Technology Park (STP) Unit and brought to any other place in India in accordance with the provisions of EXIM Policy/Foreign Trade Policy and subject to the relevant conditions specified in the Annexure to this notification, and referred to in the corresponding entry in column (5) of the said table, from so much of the Duty of Excise leviable thereon under Section 3 of the said Central Excise Act as specified in the corresponding entry in column (4) of the said Table.". SL No Chapter or heading No. or sub-heading No Description of Goods Amount of Duty Conditions 15 52.02 Cotton waste (including yarn waste and garneted stock) In excess of "Nil 30. The Notification No. 6/97-CE dated 01.03.1997 prov....
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....issible and thereafter allowing the sale to that extent. It was not meant to provide blanket permission for DTA sale. Moreover, the sale was to be effected in DTA on the basis of records maintained by the EOU, with prior intimation to the jurisdictional Customs Authorities. Further w.e.f, the date the DTA sale was subject to SION, DTA sale of waste was allowed as per SION notified on payment of concessional duties and where the waste generated was in excess of permitted norms, the EOU may apply to Development Commissioner to fix ad-hoc norms. Thus, obtaining the permission of the Development Commissioner for effecting DTA Sale of Cotton waste was an inherent requirement and cannot be dispensed with. Therefore, once the mandatory requirement of obtaining the permission from the Development Commissioner has not been fulfilled, the benefit of exemption Notification cannot be made available to such clearances in DTA. Hence, the contention of the assessee to this effect is not tenable. 30.3 Here, it is also relevant to peruse the provisions of para 3 of the Notification No.52/2003-Cus. dated 31.3.2003 which is as under: "Notwithstanding anything contained in this notificatio....
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....s consumed in excess of SION cannot be taken as duly accounted for and consequential action is to be initiated. To implement this, Notifications Nos. 84/2007-Cus and 29/2007-Cus both dated 06.07.2007 were issued so as to introduce a system of accounting of inputs/ raw materials based on SION. Thus, from the foregoing, it can be concluded that the EXIM policy juxtaposed with the relevant provisions of Customs and Central Excise, mandated obtaining permission of the Development Commissioner in or avail the benefit of Exemption Notification No. 6/97-CE or 23/2003-CE for effecting sale of waste in DTA. As the assessee failed to obtain the permission from the Development Commissioner for DTA clearances in respect of Cotton Waste, they are not eligible to claim the benefit of Exemption Notification No. 6/97-CE or 23/2003-CE for non-compliance of the conditions of the said notifications. 31. The assessee has further contested that obtaining of permission is a mere procedural formality and can be condoned. However, they failed to appreciate that any permission sought is granted subject to the fulfilment of certain conditions. Besides, permission cannot be treated as a matter of....
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....)], Sunder Steels Ltd., [2005(181) E.L.T. 154 , (SC Rajasthan Spg. & Wvg. Mills vs. CCE [1995 (77) ELT.474 (SC)] in this the latest case of Dilip Kumar & Co. 2018 (361) E.L.T. 577 (SC), Hon'ble Supreme Court has held with regard to interpretation of tax exemption Notification that it is the law that any ambiguity in a taxing statute should ensure to the benefit of the subject/assessee, but any ambiguity in the exemption clause of exemption notification must be conferred in favour of revenue - and such exemption should be allowed to be availed only to those subjects/assesses who demonstrate that a case for exemption squarely falls within the parameters enumerated in the notification and that the claimants satisfy all the conditions precedent for availing exemption. It is further affirmed that every taxing statue and exemption clause should be interpreted strictly. I therefore reject the contention of the assessee and hold that they are not eligible to the benefit of the said notifications for non-fulfilment of the conditions prescribed therein. 32. Now, after establishing that obtaining permission from Development Commissioner was mandatory for DTA sale, the next questi....
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....re to be effected by applying the proviso clause of Section 3(1) of CEA 1944. The Tribunal's Larger Bench decision in case of Kumar Arch Tech Pvt. Ltd. v. CCE Jaipur-II - 2013 (290) E.L.T. 372 (Tri.- LB), especially relevant para-9 thereof is referred to in this regard: " 9. We also find it difficult to accept the other plea of the appellant that proviso to Section 3(1) is a legal fiction under which the goods manufactured by a 100% EOU and cleared into DTA are to be treated as goods imported into India. On perusal of the proviso, we find that what this proviso provides is a measure of central excise 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 ....
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....r levy of central duty on goods produced or manufactured by a Export Oriented Unit. In case of C T Cotton, tribunal has laid down as follows: "6. The point of dispute is as to whether DTA clearances of "soft cotton waste" would attract duty in terms of proviso to Section 3(1) of Central Excise Act, 1944, read with exemption Notification No. 2/95-C.E. Under Section 3(1), duty is leviable on all "excisable goods, (excluding goods produced or manufactured in SEZ), produced or manufacture in India, at the rate set-forth in First Schedule to Central Excise Tariff Act, 1985. Under proviso to Section 3(1), duty on DTA clearance of a 100% EOU shall be the aggregate of duties of customs leviable on like goods produced or manufacture outside India, if imported into India and when the rate of customs duty on like goods is ad valorem, the assessable value of the goods produced or manufactured by the 100% EOU and cleared into DTA shall be determined under Section 14 of the Customs Act, 1962. Notification No. 2/95-C.E. provides a concessional rate of duty of 50% of the rate specified in proviso to Section 3(1) in respect of DTA clearances made within the DTA quota as determined by the Develop....
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....course of carding and combing of ginned cotton. The Department has not produced any evidence to show that 'soft cotton waste' is a product commercially distinct from cotton with different character and usages - the Department's decision to treat the same and excisable is based only on the fact that during the period of dispute, tariff heading 5202 covered "cotton waste", which by itself, in view of Apex Court's judgment in case of CCE, Chandigarh v. Markfed Vanaspati and Allied Industries reported in 2003 (153) E.L.T. 491 (S.C.), would not make this product excisable. 6.1 Hon'ble Supreme Court, in case of Krishi Utpadan Mandi Samiti, Kanpur and Others v. Ganga Dal Mill & Co. and Others reported in (1984) 4 SCC 516, while considering the question whether legume, whole grain, when notified as a "specified agricultural produce" within the meaning of this expression as defined in Section 2(t) of the U.P. Utpadan Mandi Adhiniyam, 1964, would also comprehend its split folds or parts, commercially called Dal, so as to enable Mandi Samiti to levy market fee under Section 17 of the Act on the transaction of sale of Dal of legumes specified in the Schedule to the Act, and whether th....
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....in course of which some cotton waste and yarn waste was also generated. On the purchase of raw cotton, purchase tax was paid by the assessee. Cotton waste was sold on which sales tax was paid. Here also, the dispute was as to whether the assessee can be said to have manufactured cotton waste, so as to be eligible for set-off of purchase tax paid on cotton contained in the cotton waste sold. 6.2.3 In this background the Apex Court held that when by- products, residues and waste and scrap arise in course of manufacture of main product regularly and continuously and are also sold regularly from time-to-time, intention can be attributed to manufacturer to manufacture and sell not only the main product but also the subsidiary products. 6.2.4 The above judgment only answers the question that when a manufacture manufactures a product 'A' for sale, and in course of manufacture of product 'A', an inevitable and unavoidable waste product 'B' also arises, which is also sold regularly along with the main product, whether the manufacturer can be said to have intention to manufacture waste product B also. The above question has been answered in the affirmative. But the question....
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....called the Central Value Added Tax (CENVAT) on all excisable goods which are produced or manufactured in India, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule. Provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured, - (i) in a free trade zone or special economic zone and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and brought to any other place in India, shall be an amount equal to the aggregate of the duties of customs which would shall be leviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference t....
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....s permitted. Once the debonding of the unit was permitted, finished goods earlier manufactured in the 100% EOU could be cleared for domestic tariff area (DTA) on levy of duty of central excise. The dispute arose as to what rate of duty was to be levied. The contention of the assessee was that excise duty is payable on the finished goods under the main Section 3(1) of the Act together with customs duty on the imported raw material used in the manufacture of the said finished goods lying in the stock. The Revenue on the other hand contended that excise duty under the proviso to Section 3(1) of the Act was payable on the finished goods and with no customs duty being levied on the raw materials gone into the manufacture of finished goods. The Court encapsulated the issue by stating that the expression "allowed to be sold in India" appearing in the proviso to Section 3(1) of the Act was the bone of contention between the parties. The assessee contended that for the application of the proviso to Section 3(1) two conditions have to be cumulatively and simultaneously satisfied, viz., (1) goods should have been produced or manufactured by an existing 100% EOU, and (2) these goods should hav....
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....missioner. No permission is required to sell goods manufactured by 100% EOU lying with it at the time approval is granted to debond." 24. After so stating the Court noted the stand of the revenue that by debonding permission had been granted by BoA for selling the closing stock of finished goods in India. Negativing the said contention, the Court held :- "By its application dated 8-9-1993 the appellant had only asked the Central Government for permission to debond the unit. Pending formal debonding clearance, the appellant requested the Central Government that it might allow it to sell the goods in India. This request of the appellant was never acceded to by the authority concerned and letter of debonding was issued. This application of the appellant, therefore, could not be treated as an application for permission to sell in India as contended by the Revenue and the debonding letter of BoA cannot be construed as permission to sell in India. The argument of the Revenue that debonding assumes allowing all closing stock of the goods on the date of debonding to be sold in India would be stretching the matter a little too far. Conditions for sale of 25% of the finished prod....
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....n excess of the permission granted. It is contended on behalf of the assessee that the interpretation given in the circular referred to above is binding on the Revenue and therefore, this Tribunal cannot give a different interpretation to Section 3(1) and the proviso at the instance of the Revenue. In support of the above contention reliance was placed on a decision of the Supreme Court in CCE, Vadodara v. Dhiren Chemicals Industries, 2002 (139) E.L.T. 3 (S.C.). We find no merit in the above contention of the assessee. In CCE, Vadodara v. Dhiren Chemicals Industries the Supreme Court observed that regardless of the interpretation placed by it on the expression in the notification 'on which appropriate duty of excise has already been paid' if there are circulars which have been issued by the Central Board of Excise & Customs placing a different interpretation upon the said phrase that interpretation will be binding upon the Revenue. In the present case, we are not dealing with any circular of Central Board of Revenue interpreting the meaning of the proviso to Section 3(1) and which had been in force. On the other hand, the circular dated 13-2-2002 is one issued giving a wrong interp....
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...." with effect from 11-5-2001 vide Section 120 of Finance Act, 2001 (14 of 2001). The circular being in consonance with the decision in SIV Industries Ltd. (supra) and rightly so, it was absolute unnecessary on the part of the Larger Bench of the Tribunal to say that this Court in SIV Industries Ltd. (supra) did not deal with the case where clearance was made to DTA by 100% EOU in excess of the permission granted. The attempt to distinguish the circular, in our considered opinion, was not only unnecessary but also absolutely erroneous. 30. After the judgment of the Larger Bench, the Central Board of Excise and Customs, New Delhi brought out a circular dated 5-1-2004. The relevant part of the said circular reads as follows :- "Subject : Withdrawal of Board's Circular No. 618/9/2002-CX., dated 13-2-2002 - Removal of goods by 100% EOU to DTA - Clarification regarding levy of duty on removal of goods by 100% EOU to DTA. I am directed to draw your attention to Board's Circular No. 618/9/2002-CX., dated 13-2-2002 [2002 (140) E.L.T. T27] on the above subject wherein it was clarified that prior to 11-5- 2001, the clearances from EOUs if not allowed to be sold in India, sha....
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.... of shrimps and 905.580 MT of fish and cleared the said goods in DTA. According to the assessee, these goods were ultimately exported by DTA units. The said action of the assessee compelled the authority to issue a show cause notice requiring the assessee to show cause as to why duty of excise equal to aggregate of the duties of customs should not be levied under Section 3 of the Act read with Rule 9(2) read with proviso to sub-section (1) of Section 11-A of the Act and interest and penalty thereon. The matter was contested by the assessee and eventually the Tribunal ruled in favour of the assessee. Before this Court, it was contended that since as per Note 1 of Section I of the First Schedule to the Customs Tariff Act, 1975, any reference in that section "to a particular genus or species of an animal, except where the context otherwise requires, includes a reference to the young of that genus or species" and, therefore, both live shrimps and shrimp seeds are classifiable under Sub- Heading 0306.23 of Chapter 3 of the First Schedule to the Customs Tariff Act, 1975. It was also urged that the Tribunal committed an error in relying on the decision of this Court in SIV Industries Ltd.....
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....ecovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) "When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppres­sion of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade pa....