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2023 (10) TMI 1297 - AT - Central Excise100% EOU - clearance of Spent Sulphuric Acid to the fertilizer companies in DTA - eligibility for payment of nil rate of duty Notification No.2/2008-CE dated 01.03.2008 for clearance of Linear Alkyl Benzene Sulphuric Acid - Notification No.4/2006-CE dated 01.03.2006 for clearance of Spent Sulphuric Acid to fertilizer companies - HELD THAT - In view of the decision in SATYA METALS VERSUS UNION OF INDIA 2013 (8) TMI 161 - HIMACHAL PRADESH HIGH COURT , which is applicable to the facts of this case, the charging section for duty on DTA clearance is under the provisions of Section 3(1)(b)(ii) of the Central Excise Act, 1944 and as per the said provisions, the duty is to be levied and collected from a 100% EOU, would be the duty of Customs payable if the goods produced and manufactured outside India and the same have been imported into India. This is the basic charging section of duty leviable on a 100% EOU when clearing the goods to DTA. As per the said provisions, the duty of excise shall be levied and collected on any excisable goods, which are produced and manufactured by a 100% EOU and brought to any other place in India, shall be an amount equal to the aggregate of 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 and manufactured outside India if imported into India and where the said duties of excise are chargeable with reference to their value, the value of such excisable goods shall, notwithstanding anything contained in any other provisions of this Act, be determined in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975. Therefore, the duty payable in accordance with this Notification in respect of the said goods shall not be less than the duty of excise leviable on the like goods produced or manufactured outside EOU Unit, which is specified in the said Schedule read with the any other relevant Notification issued under Section 5A(1) of the Central Excise Act, 1944 - the appellant is entitled to pay the duty in terms of Notification No.2/2008-CE dated 01.03.2008 and Notification No.04/2006-CE dated 01.03.2006. There are no merit in the impugned orders and the same are set aside - appeal allowed.
Issues Involved:
1. Eligibility of 100% Export Oriented Unit (EOU) for exemption under specific Notifications. 2. Applicability of Central Excise Duty and Customs Duty provisions. 3. Interpretation of Section 5A of the Central Excise Act, 1944. Summary: Issue 1: Eligibility of 100% Export Oriented Unit (EOU) for exemption under specific Notifications The appellant, a 100% EOU, was manufacturing Linear Alkyl Benzene Sulphuric Acid (LABSA) and Spent Sulphuric Acid, and was paying 14% duty as per Notification No.2/2008 dated 01.03.2008. They cleared Spent Sulphuric Acid to fertilizer companies, which were exempt from duty under Notification No.4/2006-CE dated 01.03.2006. The Revenue contended that these exemptions did not apply to goods produced by a 100% EOU and brought to any place in India, as per the proviso to Section 5A(1) of the Central Excise Act, 1944. Show-cause notices were issued to demand differential duty, interest, and penalties. Issue 2: Applicability of Central Excise Duty and Customs Duty provisions The appellant argued that the duty payable by a 100% EOU is governed by Section 3(1)(b)(ii) of the Central Excise Act, 1944, which equates the duty to the customs duty payable if the goods were imported into India. They cited Notification No.23/2003-CE, which provides for exemption from duty in excess of the aggregate of customs duties. The appellant also referenced a Circular No.4/2008-09 and a letter from the Chief Commissioner of Central Excise, clarifying that the exemptions under Notification No.2/2008-CE and Notification No.4/2006-CE were applicable. Issue 3: Interpretation of Section 5A of the Central Excise Act, 1944 The Tribunal referred to the Himachal Pradesh High Court's decision in Satya Metals Vs. Union of India, which clarified that the proviso to Section 5A does not bar the calculation of Additional Duty of Customs (CVD) for 100% EOUs. The effective rate of duty applicable to domestic units should be considered for computing CVD. The Tribunal concluded that the duty payable by a 100% EOU should be equivalent to the aggregate of customs duties as if the goods were imported into India. Conclusion: The Tribunal held that the appellant is entitled to the benefits of Notification No.2/2008-CE and Notification No.04/2006-CE. The impugned orders were set aside, and both appeals were allowed with consequential relief. Result: Both appeals were allowed, and the impugned orders were set aside.
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