9911796707
TMI Blog2003 (5) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... taking, manufacture cotton yarn/fabrics and garments thereof; that they clear these goods for sale in Domestic Tariff Area (DTA) on payment of duty under Notification No. 8/97-C.E., dated 1-3-97; that under the said Notification, duty leviable is exempt in excess of the Central Excise duty leviable under Section 3 of the Central Excise Act, subject to the condition that such goods are manufactured using materials procured indigenously; that a show cause notice was issued to them for demanding duty of Rs. 89,73,845/- in respect of the goods cleared to D.T.A. on the ground that imported wax was used by them and as such benefit of Notification No. 8/97 was not available; that the Commissioner under Adjudication Order No. 19/99, dated 26-3-99 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Larger Bench of the Tribunal in the case of Fabworth (India) Ltd. v. CCE, Nagpur - [2002 (143) E.L.T. 663 (Tri.) = 2002 (51) RLT 411 (CEGAT - LB)]. 4. He also mentioned that the Appellants had also cleared certain quantity of knitted fabrics to DTA which were entirely made out of indigenously manufactured yarn; that as no imported material whatsoever was used, benefit of Notification No. 8/97-C.E. cannot be denied; that no finding on this aspect has been given by the Commissioner in the impugned Order; that similarly benefit of Notification No. 8/97 will be available in respect of unwaxed yarn cleared in the D.T.A.; that the usage or non-usage of wax in the yarn is evident from the lot code allotted to the yarn; that wherever the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als or both were used in the process of manufacture; that as such their claim cannot be accepted. Regarding rejected garments, the learned D.R. reiterated the findings of the Commissioner to the effect that the Divisional Deputy Commissioner had reported that initially no duty was paid by the Appellants at the time of clearances of those garments. The learned Advocate remarked that such report was not made available to the Appellants. 6. We have considered the submissions of both the sides. The Larger Bench of the Tribunal in the case of Fabworth (India) Ltd. (supra) has settled the issue as to whether any customs duty other than customs duty payable under Section 12 of the Customs Act, is payable by the 100% Export Oriented Undertaking u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were for a period prior to 16-9-99, the date on which amendment to notification came into force. Therefore, amendment cannot be made applicable to the facts of these appeals. As a result, we hold that the finding of the Commissioner of Central Excise that the appellants are guilty of short payment of duty, is not justified under law. In the result, the impugned orders are set aside and the appeals stand allowed. 7. The Larger Bench also observed that the Board under Circular No. 345/12/99-TRU, dated 24-9-99 has clarified that Notification No. 38/99-C.E. will take effect only from its date, namely 16-9-99. In view of the fact that the period involved in the present matter is prior to 16-9-99, following the ratio of the decision in Fabw ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
