2015 (7) TMI 306 - AT - Central Excise

Waiver of pre dpeosit - clearance of goods cleared by an 100% EOU to DTA - Held that - Appellant an EOU cleared goods on stock transfer to DTA clearance by adopting the price available in their own DTA unit whereas the department enhanced the value by adopting Rule 8 read with CVR. The LAA has relied upon Board s circular No.268/85-CX-8 dt. 29.9.94 whereas we find that said circular has been withdrawn by the Board vide circular No.933/23/2010 dt. 16.8.2010 and also considering the Tribunal s decision in the case of Nagreeka Exports Ltd. Vs CCE Pune (2003 (4) TMI 186 - CEGAT, MUMBAI), we find that issue stands decided in favour of appellants. - Considering rescinding of the Board s circular dt. 29.9.2004 and also taking into consideration Tribunal s order (supra), prima facie, appellant has made out a case for waiver of predeposit of entire demand. Accordingly, waiver of predeposit and stay of recovery is granted during pendency of appeal - Stay granted.

Summary

Issues:
1. Waiver of predeposit applications filed by the appellant.
2. Determination of value and duty under Customs Valuation Rules, 1988 for goods cleared by an EOU to DTA.

Analysis:
1. The appellant filed applications for waiver of predeposit related to a common OIA. The issue involved the clearance of goods by an EOU to DTA, with the adjudicating authority determining the value and confirming the duty under Customs Valuation Rules, 1988.
2. The appellant argued that they cleared goods as EOU and on stock transfer to DTA by adopting a comparable price from their DTA unit, excluding excise duty. The appellant cited relevant circulars and tribunal decisions supporting their position. The department raised concerns about duty paid on DTA sales and AED, emphasizing the lack of proof of duty payment in the order.
3. The Tribunal found that the appellant cleared goods to DTA by adopting prices from their DTA unit, while the department enhanced the value using Rule 8 and Customs Valuation Rules. The Tribunal noted the withdrawal of a relevant circular and considered a previous tribunal decision favoring the appellants' position on DTA sales as cum-duty price.
4. Due to the withdrawal of the circular and the tribunal's decision, the appellant was granted a waiver of predeposit and a stay of recovery during the appeal process. The Tribunal found that the appellant had presented a case for the waiver based on the legal issues and relevant precedents cited during the proceedings.