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2018 (8) TMI 951 - AT - Central Excise100% EOU - liability of duty - DTA Clearances - case of Revenue is that the appellants being EOU have not paid duties of excise under proviso to Section 3(1) of Central Excise Act, 1944 on the DTA clearances made by them during the period from April 2003 to June 2006 - whether the appellants are liable to pay duty on the DTA clearances? Held that - The appellants cannot take the plea that their goods are not manufactured, non-excisable and therefore, they are not liable to pay the duty. The appellants failed to distinguish between a DTA unit and an EOU unit - Understandably, the appellants have availed all the benefits of EOU under various Acts; they should be aware of the fact that any clearance by EOU into DTA shall be treated as imports in India as they are governed by the Customs Act, 1962. In respect of 100% EOUs, duties of excise levied and collected shall be an amount equal to the aggregate the duties of customs which would be leviable (under the Customs Act, 1962 or any other law for the time being in force) on like goods produced or manufactured outside India and if imported into India. It is also clear that if such goods are chargeable to duties with reference to the value, the value of such excisable goods shall be determined in accordance with the provisions of Customs Act, 1962 and Customs Tariff Act, 1975 - it is not correct for the appellants to take recourse under only on the fact that such goods if cleared by a DTA unit are not liable to pay any duty. The goods cleared by the appellants into DTA ought to be treated as imported goods and duty shall be levied accordingly. Extended period of limitation - Held that - The appellants have contravened the provisions of Rules 8, 17 of Central Excise Rules, 2002 by way of non-maintenance of account relating to production, description and removal of goods into DTA and have also not filed ER-2 Returns for the months from April 2003 to June 2006 and therefore, the extended period is correctly invoked. The exemption available under N/N. 23/2003-C.Ex. dated 31.03.2003 cannot be denied to the appellant if they are otherwise eligible for the same. For the determination of the applicability of the N/N. 23/2003-C.Ex. dated 31.03.2003, the matter request to go to the original authority for determining the exact duty liability of the appellants on the goods cleared by them into DTA. Matter remanded to the original authority to quantify the duty liability on the clearances made by the appellants into DTA after extending the benefit of N/N. 23/2003-C.Ex. dated 31.03.2003 - appeal allowed by way of remand.
Issues:
- Liability to pay duty on DTA clearances by 100% EOU engaged in mining and processing of Iron ore products. Analysis: 1. Contention of the Appellants: The appellants argued that no duty of excise is payable under the proviso to Section 3(1) of the Central Excise Act, 1944 as there is no manufacturing involved in their process. They cited various cases to support their claim that activities like crushing, grinding, and screening do not amount to manufacturing. 2. Department's Argument: The Department contended that the duty under Section 3(1) proviso is applicable to DTA clearances by EOUs, and the duty is akin to customs duties. They highlighted that the appellants have availed benefits as manufacturers, including CENVAT Credit and refunds, indicating their manufacturing status. 3. Tribunal's Decision: The Tribunal analyzed Section 3 of the Central Excise Act, emphasizing that duties on DTA clearances by EOUs are equivalent to customs duties on imported goods. They clarified that the nature of the process undertaken is irrelevant, and the goods are treated as imports into India. The Tribunal cited a precedent to support the levy of duty on goods cleared into DTA. 4. Compliance and Penalty: The Tribunal found the appellants in violation of Central Excise Rules for not maintaining proper records and filing returns. They invoked the extended period for scrutiny but allowed the appellants to claim the benefit of a specific notification if eligible, subject to verification by the original authority. 5. Final Decision: The appeal was rejected, and the matter was remanded to the original authority to determine the duty liability on DTA clearances. The appellants were directed to pay the calculated duty, along with interest and penalty under Section 11(AC) of the Central Excise Act, 1944. This detailed analysis of the judgment underscores the legal intricacies involved in determining the duty liability on DTA clearances by EOUs and the significance of compliance with Central Excise Rules and notifications.
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