2004 (10) TMI 451 - AT - Central Excise

Summary

Issues:
- Appeal against confirmation of demand of duty and penalty on clearances into Domestic Tariff Area (D.T.A.)
- Conversion of Domestic Tariff Area unit into 100% Export Oriented Undertaking
- Eligibility for exemption under Notification No. 8/97-C.E. and Notification No. 125/84-C.E.
- Interpretation of the phrase "allowed to be sold in India" in both notifications

Analysis:
The appeal was filed against the confirmation of duty demand and penalty on clearances into the Domestic Tariff Area (D.T.A.). The appellant, a textile division, sought conversion into a 100% Export Oriented Undertaking (E.O.U.) and claimed to have complied with the necessary procedures for the conversion. The appellant argued that prior to becoming a 100% E.O.U., they did not avail any benefits applicable to E.O.Us, and during the transition period, they cleared products by paying normal central excise duty. The Commissioner treated the clearances during this period as those of a 100% E.O.U. in D.T.A., subjecting them to Central Excise duty under the relevant provision. The appellant contended that they were eligible for exemption under Notification No. 8/97-C.E., which the Commissioner denied, stating that the goods were not allowed to be sold in India. The appellant also sought the benefit of Notification No. 125/84-C.E., which was disallowed by the Commissioner based on the interpretation that the goods were considered allowed to be sold in India.

The appellant argued that both notifications could not be denied simultaneously as the condition for both was that the goods must be allowed to be sold in India. The Tribunal observed that the phrase "allowed to be sold in India" should be interpreted consistently for both notifications. Relying on a previous decision, the Tribunal held that if the goods were considered allowed to be sold in India, the benefit of Notification No. 8/97 should be extended. Consequently, the Tribunal set aside the penalty imposed and directed the Adjudicating Authority to determine any duty payable under Notification No. 8/97-C.E. The appeal was disposed of accordingly.