2004 (11) TMI 353 - AT - Central Excise

Summary

Issues:
1. Interpretation of Para 9.9(b) and 9.9(e) of EXIM Policy for clearance of goods by a 100% EOU to DTA.
2. Claiming benefit under Notification No. 8/97.
3. Applicability of proviso to Section 3 of Central Excise Act on duty demand.
4. Choice of exemption under conflicting provisions.

Analysis:
1. The appellant, a 100% EOU, appealed against the rejection of their claim for clearance of goods to DTA under Para 9.9(b) of EXIM Policy. They argued that they had obtained permission under both Para 9.9(b) and 9.9(e) in May 2000. The appellant claimed they chose to clear goods under Para 9.9(e) due to pending customer orders. However, the Tribunal found that the appellant voluntarily opted for clearance under Para 9.9(e) and issued modvatable invoices, making them ineligible for the benefit of Notification No. 8/97, which requires clearance under specific paras of the EXIM Policy.

2. The Tribunal considered the appellant's reliance on a previous decision regarding opting for alternate exemptions simultaneously. However, it was held that the appellant's voluntary choice to clear goods under Para 9.9(e) bound them to the terms of that provision. The Tribunal emphasized that once a choice is made under a specific para of the EXIM Policy, a subsequent claim under another para cannot be entertained. In this case, the appellant's decision to avail benefits under Para 9.9(b) after choosing Para 9.9(e) was not accepted, leading to the dismissal of the appeal.

3. Regarding the duty demand issue, the Revenue contended that the appellant's initial choice to clear goods under Para 9.9(e) could not be altered by filing revised returns under Para 9.9(b). The Tribunal agreed with the Revenue's position, stating that the appellant voluntarily selected Para 9.9(e) for clearance to DTA and therefore could not later seek a change through revised returns. Consequently, the appellant's claim for a different clearance provision was rejected, and the appeal was dismissed, albeit with the penalty imposed being set aside due to the circumstances of the case.

In conclusion, the judgment highlights the importance of consistent adherence to chosen provisions under the EXIM Policy for clearance of goods by EOUs to DTAs. The case underscores that once a specific para is voluntarily selected for clearance, subsequent claims under different paras cannot be entertained, emphasizing the binding nature of the initial choice made by the appellant.