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2007 (8) TMI 124 - AT - Central Excise100% EOU not obtained any permission to clear the goods to DTA Notification 2/95 is available to only those EOU who have got permission to sale in India Reason for filing the appeal against OIA have been duly considered by Committee of Commissioners so instant appeal is not objection able
Issues Involved:
1. Maintainability of the appeal. 2. Eligibility for the benefit of Notification No. 2/95-CE. 3. Recovery of interest. 4. Imposition of penalty under Section 11AC of the Central Excise Act, 1944. Issue-Wise Detailed Analysis: 1. Maintainability of the Appeal: The respondent raised a preliminary objection against the maintainability of the appeal, arguing that the opinion formed by the Committee of Commissioners under Section 35B(2) was contrary to an earlier order of remand by the Tribunal. The Tribunal clarified that the formation of the opinion by the Committee that the order was not legal or proper is a prerequisite under Section 35B(2). The Tribunal found that the Committee of Commissioners had recorded their opinion in detail, stating that the order of the Commissioner (Appeals) was not legal, proper, and correct. The Tribunal rejected the preliminary objection, noting that the Committee had considered relevant facts and recorded an opinion as required. 2. Eligibility for the Benefit of Notification No. 2/95-CE: The respondent contended that they were eligible for the benefit of the less rate of duty under Notification No. 2/95-CE. The Tribunal referred to the case of Asian Alloys Limited v. CCE, Delhi-III, which held that the phrase "allowed to be sold in India" means goods allowed to be sold in accordance with the EXIM Policy and relevant provisions. The Tribunal noted that the respondent had not obtained the necessary permission for selling goods in India as required by the EXIM Policy and Central Excise Rules. Therefore, the benefit of Notification No. 2/95-CE was not available to the respondent. 3. Recovery of Interest: The Commissioner (Appeals) had held that interest was not recoverable since the duty was paid before the issuance of the show cause notice, relying on the decision in G.K. Steel (CBE) Ltd. v. CCE, Coimbatore. The Tribunal did not specifically address this issue in the detailed analysis, but by setting aside the order of the Commissioner (Appeals), it implied that the recovery of interest could be reconsidered in light of the restored order of the adjudicating authority. 4. Imposition of Penalty under Section 11AC: The Commissioner (Appeals) had held that no penalty was imposable under Section 11AC of the Central Excise Act, 1944. The Tribunal, by setting aside the order of the Commissioner (Appeals) and restoring the order of the adjudicating authority, indicated that the imposition of penalty under Section 11AC could be reconsidered as per the restored order. Conclusion: The Tribunal rejected the preliminary objection regarding the maintainability of the appeal, stating that the Committee of Commissioners had duly recorded their opinion. It held that the respondent was not eligible for the benefit of Notification No. 2/95-CE as they had not obtained the necessary permissions for selling goods in India. The Tribunal set aside the order of the Commissioner (Appeals) and restored the order of the adjudicating authority, implying that the issues of interest recovery and penalty imposition could be reconsidered accordingly.
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