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TMI Blog2006 (12) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... But the same cannot be applied to notifications issued under Customs Act where Sec. 5A of the Central Excise has no application what so ever. The three circulars issued by the Board in 1994, 1-12-2004 and May, 2005 make it very clear that the concessional rate of duty shall be leviable in respect of clearances effected by 100% EOUs to EPCG units and even the condition of import through specific ports has been clarified to be inapplicable as clearance by 100% EOUs have been considered as clearance from any port in India including the specified port. We, therefore, hold that the concessional rate of duty has been rightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. We therefore, set aside all the three orders-in- original and allow the appeals of all the appellants. - S/Shri Krishna Kumar, K.K. Agarwal, JJ. REPRESENTED BY : S/Shri V. Sridharan and S.J. Vyas, Advocates, for the Appellant. Shri S. Chitkara, SDR, for the Respondent. [Order per : K.K. Agarwal, Member (T)]. These are nine appeals against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997, notification No.49/2000 dated 27-4-2000 and notification No.44/2002, 55/2003-Cus were in force during the relevant period. The appellants have supplied the goods to these EPCG licence holders on payment of concessional Customs duty at the applicable rate by availing the benefit of above notifications and cleared the same to the EPCG units. They were however issued show cause notices stating that what was payable by them was the Central Excise duty and accordingly the exemption notifications relating to Customs duty shall not be applicable to them unless there is an exemption notification issued under Central Excise Act and another ground was that notification No.55/03 specifies the ports from which the imports could take place and since in the present case the goods were not imported through these specified ports, concessional rate of duty prescribed under notification No.55/03 was not applicable to them. The show cause notices were adjudicated and duties were demanded and penalties imposed as stated in the preceding para. It is against these orders that the present appellants have come up in appeal before us. 3. The ld. Advocate for the appellants draws our attention to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end use based notification as per Board Circular dated 15-9-94 issued from the CBEC F.No.305/83/94-FTT. It was clarified that there was no requirement for any other separate exemption notification in this regard. Attention was also invited to the clarification issued by the Board vide F.No. 305/197/2004 FTT dated 17-2-05 wherein it was brought to the notice of the Board that the concessional rate of duty under notification No. 55/03 dated 1-4-2003 was not being extended to the 100% EOUs for the reason that the indigenous capital goods could not fulfill the condition prescribed under the notification that the goods should be imported through specified ports as specified in the notification. It was again clarified by the Board that EGCG scheme is implemented through end use based notification i.e. notification No. 55/03-Cus dated 1-4-03 and the goods being cleared from an 100% EOUs under EPCG scheme would attract a Central Excise duty equal to aggregate of effective Customs duty. In other words, to calculate Central Excise duty on goods cleared from 100% EOUs to DTA one needs to estimate what like goods is to be imported in India. As such it was clarified that Central Excise Act doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med exports under Ch. 8 of the Policy but since the goods under question have been removed by a 100% EOU to the EPCG licence holders in the DTA under the provisions of Sec.3 of Central Excise 1944, the Central Excise duty equal to aggregate of Customs duty is leviable. But since no notification has been issued under Sec.5A of the Central Excise Act granting exemption to the goods cleared by the 100% EOUs to the EPCG licence holders as has been done under notification No. 23/03-CE dated 31-3-03 which grants concessional rate/effective rate of Customs duty on the goods cleared under DTA in accordance with para 6.8 of the Policy. It was also submitted that notifications relating to EPCG schemes relates to goods directly imported from outside India and a 100% EOUs cannot be considered to be a unit located outside India. The word imported goods has been defined under sub-sec. 25 of Sec. 2 of the Customs Act as any goods brought into India from a place outside India and duty has been defined as duty of customs leviable under Customs Act. Therefore, the goods manufactured by a 100% EOUs are neither imported goods nor they are leviable to Customs duty but they are subjected to Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cured from 100% EOUs. The emphasis on Sec. 5A of the Central Excise Act is totally misplaced. It refers to exemption notifications issued under Sec. 5A and not under the Customs Act. Therefore, the exemption notification issued under Central Excise Act cannot be made applicable to 100% EOUs unless specifically provided for in that notification. But the same cannot be applied to notifications issued under Customs Act where Sec. 5A of the Central Excise has no application what so ever. The three circulars issued by the Board in 1994, 1-12-2004 and May, 2005 make it very clear that the concessional rate of duty shall be leviable in respect of clearances effected by 100% EOUs to EPCG units and even the condition of import through specific ports has been clarified to be inapplicable as clearance by 100% EOUs have been considered as clearance from any port in India including the specified port. We, therefore, hold that the concessional rate of duty has been rightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. We therefore, set aside a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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