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2006 (12) TMI 296 - AT - Central ExciseDenial of concessional rate of duty - clearances made by Export Oriented Units (100% EOU) - Customs duty provided under EPCG Schemes - HELD THAT - Once Sec. 3A itself creates a legal fiction of levying customs duty and treating clearances by 100% EOUs at par with imports, the question of altering nature of levy and the exemptions by circulars does not arise. The Commissioner has totally misunderstood the circulars which made it abundantly clear that notifications applicable to units working under EPCG schemes shall be equally applicable to goods being procured from 100% EOUs. The emphasis on Sec. 5A of the Central Excise Act is totally misplaced. It refers to exemption notifications issued u/s 5A and not under the Customs Act. Therefore, the exemption notification issued under Central Excise Act cannot be made applicable to 100% EOUs unless specifically provided for in that notification. But the same cannot be applied to notifications issued under Customs Act where Sec. 5A of the Central Excise has no application what so ever. The three circulars issued by the Board in 1994, 1-12-2004 and May, 2005 make it very clear that the concessional rate of duty shall be leviable in respect of clearances effected by 100% EOUs to EPCG units and even the condition of import through specific ports has been clarified to be inapplicable as clearance by 100% EOUs have been considered as clearance from any port in India including the specified port. We, therefore, hold that the concessional rate of duty has been rightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. We therefore, set aside all the three orders-in- original and allow the appeals of all the appellants.
Issues Involved:
1. Applicability of concessional rate of Customs duty under EPCG schemes to 100% EOUs. 2. Legal interpretation of duty payable by 100% EOUs under Section 3 of the Central Excise Act. 3. Validity of exemption notifications under Customs Act for 100% EOUs. 4. Relevance of Board circulars in determining duty and exemptions for 100% EOUs. 5. Imposition of penalties on appellants. Issue-wise Detailed Analysis: 1. Applicability of Concessional Rate of Customs Duty under EPCG Schemes to 100% EOUs: The primary issue was whether 100% EOUs are entitled to the concessional rate of Customs duty provided under EPCG schemes. The appellants argued that the benefit of end-use notifications, including those under the EPCG scheme, should apply to clearances made by 100% EOUs. The Board's circulars from 1994, 2004, and 2005 supported this view by clarifying that clearances from 100% EOUs to the DTA are to be treated on par with imports, thus making them eligible for concessional Customs duty. The Tribunal agreed with this interpretation, emphasizing that the duty payable by 100% EOUs is equivalent to the aggregate of Customs duty on like goods imported into India. 2. Legal Interpretation of Duty Payable by 100% EOUs under Section 3 of the Central Excise Act: The adjudicating authority argued that the duty payable by 100% EOUs under Section 3 of the Central Excise Act is Central Excise duty, not Customs duty. However, the Tribunal noted that Section 3A creates a legal fiction, treating clearances by 100% EOUs as imports for duty calculation purposes. This means the duty quantified is essentially Customs duty, not Central Excise duty. The Tribunal found that the Commissioner misunderstood this legal fiction and the related circulars, which clearly stated that notifications applicable to EPCG schemes also apply to 100% EOUs. 3. Validity of Exemption Notifications under Customs Act for 100% EOUs: The adjudicating authority contended that exemption notifications under the Customs Act do not apply to 100% EOUs unless explicitly stated in the notification. The Tribunal refuted this by explaining that the legal fiction created by Section 3A of the Central Excise Act necessitates treating 100% EOUs' clearances as imports, thus making them eligible for exemptions under Customs notifications. The Tribunal emphasized that Section 5A of the Central Excise Act, which deals with Central Excise exemptions, is irrelevant in this context. 4. Relevance of Board Circulars in Determining Duty and Exemptions for 100% EOUs: The appellants relied heavily on Board circulars from 1994, 2004, and 2005, which clarified that 100% EOUs should be treated on par with imports for duty calculations and exemptions. The Tribunal upheld the validity and applicability of these circulars, noting that they provided clear guidance that 100% EOUs could avail of concessional rates under EPCG schemes. The Tribunal dismissed the adjudicating authority's view that these circulars could not override statutory provisions, asserting that the circulars were consistent with the legal fiction established by Section 3A. 5. Imposition of Penalties on Appellants: Given the Tribunal's findings that the appellants were entitled to the concessional rate of duty and had not evaded any duty, it ruled that the imposition of penalties was unwarranted. The Tribunal set aside the penalties imposed on the appellants, concluding that there was no basis for further duty demands or penalties. Conclusion: The Tribunal allowed the appeals, setting aside the orders-in-original and ruling that the appellants were entitled to the concessional rate of Customs duty under EPCG schemes. It emphasized the legal fiction created by Section 3A, the applicability of relevant Board circulars, and the inapplicability of Section 5A of the Central Excise Act to Customs duty exemptions for 100% EOUs. Consequently, all penalties were also annulled.
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