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TMI Blog2008 (4) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 245 - CESTAT, MUMBAI] Regarding refund – unjust enrichment – held that:- The submission that selling price shown in the invoice of Rs.42.89 is equivalent to the contract price of US $0.80 and duty payable is separately shown on the invoice and, therefore, the appellants could not be held to have recovered any duty from the customers, is not sufficient to discharge the burden of proving that the incidence of duty had not been passed on by the appellants to their customers. - Appeal no. E/3763/05 - - - Dated:- 22-4-2008 - CORAM : Ms. Jyoti Balasundaram, Vice President Per: Ms. Jyoti Balasundaram, Vice President: I have heard both sides. 2. The learned Member(Judicial) has held that duty on clearances by the appellants, a 100% EOU, into DTA after obtaining requisite permission from the Development Commissioner is to be recovered from the DTA buyer on the basis of paragraph 9.26 of the Handbook of Procedures, 1997-2002 and Tribunal s judgement in Interdrill Asia vs. CCE, Belapur 2006(193)ELT 440. The further basis for his conclusion is that EOUs were governed by EXIM policy and the Handbook of Procedures, which were a self-contained code in this regard, as held b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also constituted a composite scheme, the principle generalia specialibus non derogant was not applicable. (4) Sahajanand Technologies judgement has been wrongly interpreted for the reason that it did not hold that the duty payable by the EOU on DTA clearances was customs duty and the duty could not be in the nature of customs duty and the duty could not be in the nature of customs duty, as Section 3 of the Central Excise Act could not empower levy of customs duty. (5) Para 9.26 of the Handbook of Procedures did not distinguish between a clearance under para 9.10(b) of the EXIM Policy, as compared to clearances under clauses (a) to (f) of para 9.9 thereof. If the appellants argument was accepted, then all clearances into DTA and not those against foreign exchange payment alone would be governed by para 9.26 and all duties relating to all such clearances would be covered thereby which will read to an anomalous situation. (6) The judgement in Interdrill Asia wrongly relied upon the decision in Maruti Cottex Ltd. vs. CCE 2005 (183) ELT 393 and was, therefore, required to be referred to a larger bench. 4. I find that a direct consequence of the order of the learned Member(Techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in CCE vs. Raghuvar India Ltd. 2000(118)ELT 311(SC) which clearly explains how general provisions are to be distinguished from special provisions. (In that decision, the provisions relating to modvat credit were held to constitute a self-contained special scheme as against the provisions of the Central Excise Act, which were general in nature.) The same principle should be held to apply to the provisions relating to the EOU scheme including para 9.26 of the Handbook of Procedures vis- -vis the Central Excise Rules. 5. As regards Chapter VA of the Central Excise Rules, 1944 which were the rules in force during the period in dispute, Rule 100A(2) in Chapter VA makes it clear that the chapter applies to an EOU who has been allowed by the proper officer to remove such excisable goods for being sold in India, on payment of duty of excise leviable thereon. Rule 2(14) indicates that the proper officer is the jurisdictional central excise officer. The chapter covers EOUs making clearances into DTA on payment of duty, on the basis of permission of the jurisdictional central excise officer, and does not cover clearances under para 9.10(b) of the Exim policy and on the basis of the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (1973) 1 SCC 442, Jalaja Shedthi vs. Lakshmi Shedthi (1973) 2SCC 773 and Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. (2001) 3 SCC 609, that the use of the definite article the relates to the preceding provision. Clearances under para 9.10(b) of the Exim Policy along would, therefore, be entitled to the benefit of para 9.26 of the Handbook of Procedures and this would result in total harmony between all the provisions. In view of my finding that Rule 7 does not cover clearances by an EOU into DTA under para 9.10(b) of the Exim Policy, Rule 7 of the Central Excise Rules would not be rendered totally redundant as it operates in an entirely different space. 7. The issue in dispute has not been examined in any decision except Interdrill Asia cited supra. Judgements upholding duty liability on EOUs in respect of DTA clearances under para 9.10(b) during the period that para 9.26 of the Handbook of Procedures were in force, without considering the latter provision, are sub silentio and do not form binding precedent, as held by the Apex Court in State of U.P vs. Jeet Singh Bisht (2007) 6 SCC 586. 8. The contention of the Revenue that the Handbook of Procedures is merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the final consequences of the fiction viz. that the duty would be payable by DTA purchaser as a deemed importer. Such an interpretation would amount to doing violence to the scheme of DTA clearances against payment in foreign exchange and cannot be sustained. It is well settled that every legal fiction is to be carried out to its logical conclusion and the consequences of such fiction are also to be deemed to follow and where the consequence is specifically provided for by para 9.26 of the Handbook of Procedures. 9. In the light of the above, I concur with the findings of the Learned Member(Judicial) on issue no. 1. 10. On the second issue, I note that the assessees have not been able to establish that the assessments were provisional, and, therefore, concur with the learned Member(Technical) that the clearances were not provisional. 11. On the third issue, there is insufficient material placed on record by the appellants to rebut the legal presumption that incidence of duty has been passed on. The submission that selling price shown in the invoice of Rs.42.89 is equivalent to the contract price of US $0.80 and duty payable is separately shown on the invoice and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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