TaxTMI 
TaxTMI 
2005 (1) TMI 297
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....ification No. 53/97-Cus., dated 3-6-1997 (as amended) and also procured indigenous goods without payment of duty claiming the benefit of Notification No. 1/95-C.E., dated 4-1-1995 (as amended). They cleared their products by way of exports in discharge of export obligation under the EOU scheme and by way of sales to domestic tariff area (DTA) with permission from the Development Commissioner MEPZ, Chennai. The demand of duty in this case is on their clearances to DTA for the period January-December, 2001, which were effected by availing exemption under Notifications 2/95-C.E., dated 1-4-1995, 39/96-Cus., dated 23-7-1996 and 51/96-Cus., dated 23-7-1996. Relevant particulars of these clearances are tabulated below : S. No. Category of Customers Period Value of goods cleared Rs. Exemption availed under Notification 01 Defence Research Development Organisation (DRDO) Jan.-Mar., 2001 1,35,000 No. 2/95-C.E., dated 4-1-95 read with Notification No. 39/96-Cus., dated 23-7-96 02 Public Funded Research Institutions (PFRIs) Jan.-Mar., 2001 & Apr.-Dec., 2001 76,38,058 No. 2/95-C.E., dated 4-1-95 read with Notification No. 51/96-Cus., dated 23-7-96 ....
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....ce were covered by Notification No. 39/96-Cus., as these clearances should be treated as "imports" by the State Government. The clearances made to Defence Research Development Organisation (DRDO) under the Ministry of Defence, Government of India were against valid permissions issued by the Development Commissioner under Para 9.9(b) of the Exim Policy, 1997-2002 and the same were also covered by Notification No. 39/96-Cus. Thus the assessee considered all the DTA clearances to be exempt from payment of duty. They also pointed out that the proceedings initiated against them for recovering duty, for an earlier period, on identical grounds were dropped by the Commissioner of Central Excise. Trichy and that the Department accepted the decision of the said Commissioner. In an alternative plea, the assessee claimed abatement of duty from sale price in terms of Section 4(4)(d)(ii) of the Central Excise Act for the purpose of determination of assessable value of the goods. Case law was cited in support of the contentions. Ld. Commissioner rejected the assessee's arguments and confirmed the demand of duty against them and imposed penalty on them. Hence this appeal. 4. Heard both sides. L....
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.... was placed on the Tribunal's decision in Akar Tools Ltd. v. CCE - 2004 (167) E.L.T. 176 (Tri.-Mum.), wherein the benefit of exemption under Notification No. 13/86-Cus., as amended by Notification No. 83/90-Cus., was extended to DTA clearances from a 100% EOU. The Counsel claimed that the Department had accepted the Tribunal's decision in Akar Tools (Supra) and hence was not justified in taking a stand inconsistent therewith. It was now not open to the Revenue to say that the Customs Notifications would not be reckoned in determining duty liability on DTA clearances from EOU. Ld. Counsel also referred to certain Exim Policy clarifications and submitted that, as clarified in the Ministry of Finance Circular No. 29/2003-Cus., dated 3-4-2003, Central Excise duties would be leviable on clearances by EOU to DTA, in terms of the proviso to Section 3(1) of the Central Excise Act read with relevant exemption Notifications. It was also clarified in the same Circular that such clearances would be treated as "deemed exports" of the EOU. Counsel argued that, in terms of these clarifications, the benefit of exemption under the Customs Notifications would be available to the goods cleared by the....
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....nt in West Coast Paper Mills v. Superintendent of Central Excise - 1984 (16) E.L.T. 91 (Kar.), wherein it was held that the principle of res judicata was not applicable to adjudication proceedings before Revenue authorities. JCDR also relied on the Tribunals decision in CC, Chennai v. Hewlett Packard Ltd. - 1999 (108) E.L.T. 221, wherein it was observed that the principle of res judicata did not apply in taxation matters. He also relied on the Apex Court's judgment in Swaraj Mazda Ltd. v. CCE, Chandigarh - 1995 (77) E.L.T. 505 (S.C.), wherein it was held that the Tribunal was not precluded from deciding a question on merits on account of an earlier decision for an earlier period. Adverting, again, to the main issue, ld. JCDR pointed out that the case of Akar Tools cited by ld. Counsel was distinguishable inasmuch as, in that case, the issue was different and the same pertained to countervailing duty. It was pointed out that the wording of the proviso to Section 3(1) of the Central Excise Act did not admit of an argument that, in the quantification of duty leviable on DTA clearances of EOU, exemption Notifications issued under Section 25 of the Customs Act should be taken into accou....
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....d be supplied to and used by a public funded research institution. 8. We have given careful consideration to the rival submissions. Two issues were considered by the lower authority. The first issue considered by it was whether the quantum of DTA clearances during the period of dispute was in excess of the assessee's entitlement. We find that this issue was abandoned by the Commissioner himself, with the result that the Department's allegation that the assessee's DTA clearances were in excess of their entitlement stood rejected. The second issue framed by the lower authority was whether the exemption under Notification No. 51/96-Cus. and Notification No. 39/96-Cus., was available to the assessee's clearances to DTA. On this issue, we note, the Commissioner of Central Excise, Trichy in his Order No. 6/2001, dated 25-7-2001 held in favour of the same assessee and this decision has been accepted by the Department. Ld. Counsel has argued that the decision of the Commissioner, Trichy is a binding precedent. This argument has been rebutted by ld. JCDR on the basis of case law. We are inclined to accept the JCDR's argument that the principle of res judicata is not applicable to quasi-j....