2008 (1) TMI 733 - AT - Central Excise

Summary

Issues:
1. Demand of duty and penalty imposed under Section 11AC of the Central Excise Act.
2. Treatment of the assessee as an Export Oriented Unit (EOU) for the purpose of the demand.
3. Violation of Condition No. 1(c) of Notification No. 1/95-C.E.
4. Payment of duty on capital goods and raw materials.
5. Settlement of dispute with the department before the Settlement Commission.
6. Availability of CENVAT credit on raw materials for payment of duty on finished products.

Analysis:

1. The judgment addresses the demand of duty amounting to over Rs. 75.00 lakhs and an equal penalty imposed under Section 11AC of the Central Excise Act on the appellants. The Commissioner demanded this amount and appropriated a partial payment made by the appellants towards the same.

2. The issue of the treatment of the assessee as an Export Oriented Unit (EOU) is examined in detail. The Development Commissioner certified that the assessee was no longer a 100% EOU due to the expiration of the validity period of their Letter of Permission (LOP) with effect from 26-2-2000. However, the impugned order treated the assessee as an EOU for the purpose of the demand.

3. The judgment discusses the violation of Condition No. 1(c) of Notification No. 1/95-C.E. by the assessee. It is noted that the assessee procured raw materials without paying duty but did not export finished goods, leading to the demand comprising both capital goods and raw materials.

4. Regarding the payment of duty on capital goods and raw materials, it is highlighted that an amount of duty on the depreciated value of capital goods was paid by the assessee in October 2001. However, the capital goods were not allowed to be removed from the EOU due to non-payment of duty on raw materials.

5. The judgment delves into the settlement of the dispute with the department before the Settlement Commission. The assessee treated themselves as a regular unit (non-EOU) by paying the settled amount of duty on finished goods cleared to the Domestic Tariff Area (DTA). The Settlement Commission's order and the treatment of the assessee as non-EOU are discussed in detail.

6. Lastly, the availability of CENVAT credit on raw materials for payment of duty on finished products is examined. The settlement of the dispute up to March 2002 and the claim of CENVAT credit on raw materials for the subsequent period are considered, leading to the inclination to grant waiver of pre-deposit and stay of recovery in respect of the duty and penalty amounts based on the circumstances presented.