2013 (1) TMI 98 - HC - Central Excise

Clearance by 100% EOU to DTA - Without permission - Clearances other than the panel meters such as multimeters, transducers and accessories to the DTA would not be eligible for the benefit of concessional rate of duty under - Notification No. 2 of 1995 dated 4.1.1995 - Held that - During the pendency of the appeal, the Development Commissioner s Office clarified that as per the policy all manufactured goods which are exported can be cleared to the DTA to the extent permitted under the policy. In the light of the clarification given by the Development Commissioner, the CESTAT allowed the claim of the Assessee and held that the concessional rate of duty is available in respect of multimeters, insulation testers, transducers, energy meters and electrical / electronics measuring instruments, spares and accessories. Since the decision of the CESTAT is based on the clarification given by the office of the Development Commissioner, no fault can be found with the decision of the CESTAT to the effect that the assessee was entitled to the benefit of the Notification No. 2 of 1995 in respect of multimeters, transducers and accessories, etc. In favour of assessee

Summary

Issues:
1. Computation of duty based on customs duties
2. Consideration of CBEC Circular no.12/2008-Cus
3. Appreciation of Order Nos. C/84-85/2009(PB) dated 17.2.2009

Analysis:

Computation of duty based on customs duties:
The Revenue raised the issue of whether duty should be calculated based on 50% of each of the customs duties or 50% of the aggregated duties. The Counsel referred to a decision by the Apex Court in a similar case, establishing that the question is settled against the Revenue. Therefore, the Court held that this question cannot be entertained.

Consideration of CBEC Circular no.12/2008-Cus:
Regarding the consideration of CBEC Circular no.12/2008-Cus, the issue was whether the Tribunal failed to take into account the circular which clarified the similarity requirement for goods sold by an EOU into DTA. However, the Court noted that a clarification from the Development Commissioner's office supported the Assessee's position that all manufactured goods exported could be cleared to DTA. The CESTAT relied on this clarification and allowed the Assessee's claim, concluding that the concessional duty rate applied to various products. Consequently, the Court found no fault with the CESTAT's decision and dismissed this issue.

Appreciation of Order Nos. C/84-85/2009(PB) dated 17.2.2009:
In relation to the failure to appreciate Order Nos. C/84-85/2009(PB) dated 17.2.2009, the Court examined the facts where the Assessee, a 100% EOU, was permitted to manufacture specific products for sale in DTA. The Revenue contended that only one product had clearance permission, but a clarification from the Development Commissioner's office indicated otherwise. The CESTAT, relying on this clarification, ruled in favor of the Assessee. As the decision was based on the official clarification, the Court upheld the CESTAT's decision. Therefore, this issue was also dismissed.

In conclusion, the Court dismissed the appeal, citing the settled nature of the first issue against the Revenue and the supporting clarification from the Development Commissioner's office for the remaining issues.