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TMI Blog1999 (4) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... country. The appellant is, however, permitted to make clearances for domestic tariff area (DTA) on payment of duty as set out in proviso to Sub-section (1) of Section 3 of the Central Excises Act, 1944. It is appropriate to set out the proviso at this stage: "Provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured, - (i) in a free trade zone and brought to any other place in India; or (ii) by a hundred per cent export oriented undertaking and allowed to be sold in India, shall be an amount equal to] the aggregate of the duties of customs which would be leviable under Section 12 of the Customs Act, 1962 (52 of 1962), on like goods produced or manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 97/91-Central Excises, dated the 7th October 1991, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all excisable goods (hereinafter referred to as the said goods) specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) and produced or manufactured in a hundred per cent export oriented undertaking or a free trade zone and allowed to be sold in India under and in accordance with the provisions of paragraphs 102 and 114 of the Export and Import Policy, 1st April, 1992-31st March, 1997 from so much of the duty of excises leviable thereon under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above Notification, the rate of duty applicable is to be higher. Hence a show cause notice was issued on 23-11-1994 to show cause as to why the rate of duty should not be changed from 7.625% ad valorem to 10% ad valorem On adjudication, the rate of duty was kept at 7.625% ad valorem. The Assistant Collector accepted the plea of the appellants herein that exemption Notification 19/88-C.E., dated 1-3-1988 exempted the goods falling under Chapter 26 (under which the instant goods iron ore pellets fall) from the whole of the duty of excise leviable thereon. Therefore, calculation of rate of duty at 7.625% being higher than the 'zero' rate of duty leviable on such goods is correct. 2.1 Revenue filed an appeal against the aforesaid adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the additional customs duty with which the instant goods are concerned in view of the proviso to Section 3(1) of the Central Excise Act. 3.2 Ld. SDR reiterates the findings given by the Commissioner (A) in the impugned order already set out above. 4.1 We have carefully considered the pleas advanced from both sides. In determining the question before us i.e. the applicable rate of duty to the goods produced by the 100% EOU that the appellant is, we have to determine whether the benefit of Notification 19/88-C.E., dated 1-3-1988 (as amended) is applicable to the goods produced by the appellants. 4.2 In order to determine this moot question, we set out below Notification No. 19/98-C.E., dated 1-3-1988 (as amended):- "Exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the goods produced in 100% EOU etc. 5.1 Second ground taken by the Commissioner (Appeals) is that this Notification (19/88) is not applicable to 100% EOU because this is conditional notification to the effect that the benefit of nil rate of duty under the said notification would be available only if no credit of duty paid on the inputs used in the manufacture of said goods has been taken under Rule 56-A or 57-A of the Central Excise Rules, 1944. 6. We observe that this ground taken by the Commissioner (Appeals) in the impugned order is correct because 100% EOU or the appellants herein cannot be said to have taken any credit of duty paid on the inputs used in manufacture or iron ore pallets. If this condition is not satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egate duties of Customs on such imported goods. Since Tribunal's judgment in Chandigarh Zinc & Residue, supra holds that additional duty of Customs is not to be charged on such imported goods keeping in view the benefit of Notification 19/88-C.E., the rate of excise duty on the goods produced by the appellant in 100% EOU cannot, therefore, be 10% (Tariff rate), as contended by the Revenue but it would be only in terms of Notification 19/88. Therefore, the rate proposed by the appellant in their classification, being not less than the nil rate of duty in terms of Notification 19/88-C.E. is the correct rate of duty. 7. We find sufficient force in this submission of the learned Advocate, Shri C. Chidambaram. Although looking at Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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