2008 (7) TMI 98 - AT - Customs

Appellant is a 100% EOU - Whether in respect of a 100% EOU availing sales tax exemption, for determining the excise duty payable based on aggregate value of customs duty, the element of SAD should be taken into account or not - Tribunal decision in the case of Hanil Era Textiles squarely applies - However, as the issue involved is of importance and tribunal has given view contrary to the above judgment, dispute be referred to Large Bench

Summary

Issues:
1. Whether Special Additional Duty (SAD) should be included in the excise duty payable by a 100% Export Oriented Unit (EOU) availing sales tax exemption.

Analysis:

Issue 1:
The appellant, a 100% EOU manufacturing certain goods, availed benefits from Sales Tax/VAT exemption due to being located in a specified backward area. The dispute arose when the Department proposed to include the SAD element of 4% in the aggregate value of Customs duty, as the goods cleared by the EOU to the Domestic Tariff Area (DTA) were exempt from Sales Tax. The Commissioner confirmed the demand, leading to the appeal.

The appellant's advocate argued that units in backward areas not liable to Sales Tax should not be subject to SAD under the Customs Tariff Act. He emphasized that the exemption from Sales Tax did not imply exemption from SAD. The advocate also disputed the penalty imposed for alleged suppression.

On the other hand, the Department contended that SAD is levied to counterbalance Sales Tax on similar articles sold in India, irrespective of individual unit rates. They argued that the backward area exemption did not eliminate the possibility of Sales Tax on goods produced in such units.

The Tribunal analyzed the interplay of Customs Act, Central Excises Act, and State Sales Tax laws. It noted that SAD is imposed on imported goods by the Central Government, based on State Sales Tax rates. The Tribunal found that SAD should be included in the excise duty calculation for goods cleared into the DTA, exempt from Sales Tax.

Referring to a previous Tribunal decision, the Tribunal highlighted that units in backward areas availing Sales Tax exemption should still account for SAD in excise duty calculations. Due to conflicting views within the Tribunal, the case was referred to a Larger Bench to decide whether SAD should be considered for excise duty calculation in such cases.

In conclusion, the Tribunal acknowledged the importance of the issue and referred the case to a Larger Bench for a definitive decision.

This detailed analysis of the judgment highlights the arguments presented by both parties, the Tribunal's interpretation of relevant laws, and the decision to refer the case to a Larger Bench for resolution.