2003 (7) TMI 126 - AT - Central Excise

Summary

Issues:
1. Rate of duty applicable to goods cleared to Domestic Tariff Area by an EOU.
2. Imposition of penalty under Rule 209 of the Central Excise Rules.

Analysis:

Issue 1:
The appellants, an EOU, were facing a demand for duty and penalty for clearing canned vegetables to the Domestic Tariff Area allegedly without payment of appropriate excise duty as per the permission granted by the Development Commissioner. The main contention revolved around the rate of duty applicable to the goods. The impugned order demanded duty at tariff rates under the proviso to Section 3(1) of the Central Excise Act, while the appellant argued for duty to be levied under the main proviso to Section 3 applicable to goods sold to the Domestic Tariff Area by a Non-EOU. The Tribunal referred to a Larger Bench decision which clarified that all goods cleared by an EOU to the Domestic Tariff Area would attract duty under the proviso to Section 3(1) of the Act. It was established that duties leviable are the effective rates of duty and not the tariff rates, leading to a significant reduction in the amount of duty payable by the appellant. Consequently, the jurisdictional authority was directed to recalculate the duty demand at the effective rates provided under Notification No. 13/98, with the appellant required to deposit the undisputed amount within a specified timeframe.

Issue 2:
The second issue in the appeal pertained to the imposition of a penalty on the appellant under Rule 209 of the Central Excise Rules. The appellant argued that they had obtained permission from the Development Commissioner for the sale of goods to the Domestic Tariff Area, and the clearances were made with prescribed Central Excise documents. It was contended that there was no contumacious conduct on their part to justify the penalty, especially considering the clearances were made with the knowledge of Central Excise authorities and were intended for the Armed Forces of India. The Tribunal agreed with the appellant, noting that any dispute regarding the permission granted by the Development Commissioner was more of a difference in interpretation rather than fraud. Therefore, the imposition of the penalty was deemed unwarranted, and the penalty imposed was set aside. The appeal was disposed of accordingly.