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2017 (8) TMI 512 - AT - Central Excise100% EOU - option to choose when two notifications available - the appellant had manufactured and cleared cotton yarn out of indigenous raw material to DTA on payment of duty at the rate of 8% BED by availing N/N. 55/91 instead of following the procedure laid down in N/N. 8/97 Central Excise date 1.3.1997 as amended by N/N. 11/2000 Central Excise dated 1.3.2000 wherein the duty payable is the aggregate of the duties of excise liable under Section 3 of Central Excise Act, 1985 - Held that - Board had issued a circular No.384/17/98 dated 23.3.1998 wherein it has clarified that an assessee would be eligible to claim exemption either under N/N. 8/97-CE dated 1.3.1997 or N/N. 55/1991-CE - when there are two Notifications available, it is the option of the assessee to follow any one of them which is more beneficial to him - appeal allowed - decided in favor of appellant.
Issues:
- Appeal against confirmation of duty but dropping of penalty under Section 173Q - Interpretation of conflicting notifications for duty payment by a 100% EOU - Consideration of relevant judicial precedents and circulars in decision-making Analysis: 1. Appeal against Confirmation of Duty but Dropping of Penalty under Section 173Q: The appeal was filed challenging the impugned order confirming the duty demand but dropping the penalty imposed under Section 173Q. The appellant, a 100% EOU, manufactured and cleared cotton yarn to the DTA on payment of duty under Notification No.55/91 instead of Notification No.8/97. The Commissioner (A) confirmed the demand but dropped the penalty. The appellant argued that the impugned order did not consider the relevant notification and binding judicial precedents. The Tribunal found the impugned order unsustainable in law as it did not follow the directions of the Board and failed to consider the option available to the assessee to choose the more beneficial notification for duty payment. 2. Interpretation of Conflicting Notifications for Duty Payment by a 100% EOU: The key issue revolved around the conflicting notifications available for duty payment by the appellant. The appellant contended that they were entitled to choose the more beneficial notification for duty payment, which was upheld by various judicial precedents like CCE Vs. Sanghi Spinners India Ltd. and Nahar Industrial Enterprises Ltd. The Tribunal referred to the circular clarifying that the EOU could claim exemption under either Notification No.8/97 or Notification No.55/91. By relying on the Supreme Court decision in Nahar Industrial Enterprises, the Tribunal held that the impugned order was not sustainable as it did not consider the option available to the assessee to select the favorable notification for duty payment. 3. Consideration of Relevant Judicial Precedents and Circulars in Decision-making: The Tribunal considered various judicial precedents and circulars in reaching its decision. It noted that when two notifications are available, the assessee has the option to choose the more beneficial one. The Tribunal referred to Circular No.384/17/98 clarifying the eligibility of the assessee to claim exemption under either notification. By following the ratio of the cited decisions and the Board circular, the Tribunal concluded that the impugned order was not sustainable in law. Therefore, the Tribunal set aside the impugned order and allowed the appeal of the appellant with consequential relief, if any. In conclusion, the judgment highlights the importance of considering relevant notifications, judicial precedents, and circulars in determining the duty payment obligations of a 100% EOU. The decision emphasizes the principle that when multiple notifications are available, the assessee has the discretion to opt for the more advantageous one.
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