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TMI Blog2011 (3) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed warehousing bills of entry, against procurement certificate issued by the proper officer of Central Excise. In some of the cases, the clearances were affected after payment of National Calamity Contingent Duty (NCCD), Education Cess and Secondary & Higher Education Cess (SHE Cess), levied under the Section 134 of Finance Act, 2003, under protest. Filtering out the unnecessary details in respect of various bills of entries, whether the appellants paid the said NCCD, SHE Cess and Education Cess, at the time of clearance under protest or the demands were subsequently raised in respect of the said NCCD and Cess, the core question required to be decided in the present appeal is as to whether the respondents are liable to pay the National Calamity Contingent Duty, SHE and Education Cess on the various consignments of imported crude petroleum oil. 3. After hearing both the sides, we find that the respondents took number of pleas before the Commissioner (Appeals). It was contended by them that since no basic custom duty is required to be paid by them in terms of the provisions of Notification No. 52/2003-Cus., dated 31-2-2003, the same would also include the exemption to NCCD ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents in respect of the above issue by holding that in the absence of any Notification under Section 25 of the Customs Act, 1962, granting exemption from payment of duty to the imported goods, they have to discharge the NCCD and other Cess (SHE & Education Cess) levied vide Section 134 of the Customs (sic) [Finance] Act, 2003. 5. However, he accepted the respondent's stand that the Assistant Commissioner of Jamnagar, who had confirmed the demand of NCCD & other Cess as a result of finalization of the in-bond bill of entry, was not having any jurisdiction, inasmuch as the proper officer to raise the demand was Assistant Commissioner of Central Excise Rajkot, who was having administrative control of the 100% EOU. He relied upon the Board Circular No. 31/2003-Cus., dated 7-4-2003 laying down that the administrative control over all the EOUs shall be with jurisdictional Commissioner of Central Excise. Inasmuch as the Crude Petroleum Oil imported by the respondents was cleared by the Customs at Sikka Port against procurement certificate issued by the jurisdictional Central Excise authorities, with whom they executed the bond and all the consignments were cleared against in-bond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to whether the respondents, being an EOU, were liable to pay NCCD, SHE and Education Cess in respect of the Crude Oil imported by them. 10. The facts are not in dispute. The imported Crude Petroleum Oil was cleared at the port of import i.e. Sikka by filing in-bond bill of entry for rewarehousing the goods in their 100% EOU. The goods were cleared and brought to the 100% EOU. The fact that in some cases the said clearances were under provisionally assessed into bond bill of entry or after payment of NCCD and other cess etc. under protest, will not make a difference in as far as the legal issue is concerned. Both the sides have advanced argument that the exemption from basic excise duty as available in terms of Notification No. 53/2003-Cus. would also get extended to NCCD and Education and SHE Cess. However, we note that the present appeals can be disposed off without going to the dispute as to whether exemption of basic customs duty granted vide education notification No. 52/2003-Cus. would entered to the NCCD, Cess & Secondary and Higher Education Cess. 11. The Commissioner (Appeals) vide his impugned order has accepted the issue of jurisdiction raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the administrative control over the EOU (in this case proper officer of Central Excise Commissionerate, Rajkot) has the exclusive jurisdiction to initiate action for any violations under the Customs Act, 1962 including raising/confirming demand on account of short levy/non levy etc. of the nature being dealt with in the instant appeals. I also observe that pronouncing upon the jurisdiction of the officer to raise demand in respect of goods imported by 100% EOU through a Customs Port, Hon'ble Tribunal, Principal Bench, New Delhi in its recent judgment in the case of CCE, Jaipur-I v. Paras Fab International [2009 (237) E.L.T. 711 (Tri. -Del.)] has held that the jurisdiction is with the proper officer having administrative jurisdiction over the 100% EOU and not Custom House where the goods are assessed by In-bond bill of entry for the purpose of being warehoused. As the imported goods in this case have admittedly been warehoused in the registered warehouse of the appellant EOU, if at all a demand was required to be made for charging of and/or to order recovery of duties not covered under the bond executed by the EOU or not covered by the Notification No. 52/2003-Cus., dated 31-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise any demand of short levy or non levy lies with the Central Excise authorities have jurisdiction over 100% EOU. The fact of payment of NCCD or Cess by the respondents, at the time of assessment of into bond bill of entry, will not change the above legal position and would not bifurcate the jurisdiction vesting in two different authorities depending upon the fact of payment of NCCD. Further, it has to be noted that the payments of NCCD were made by the respondents at Sikka Port under protest. The contention of the learned advocate appearing for the Revenue that the duty was paid under protest only in six cases does not seem to be factually correct, inasmuch as it stands recoded in the order in original, that NCCD was paid by the importer under protest. This leads us to conclude that the payment of duty at Sikka Port by the importers under protest was on account of their not accepting the liability to pay NCCD. The fact of payment of duty under protest either at Sikka Port or at Rajkot, keeps the issue of payment of NCCD open and cannot be held to be amounting to acceptance on the part of importers as the very use of expression 'under protest' reflects upon the right of the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, the Larger Bench observed that if such use has to be treated as removal for home consumption and duty is required to be paid on such use, there will not be any incentive for an assessee to undertake manufacturing in-bond and the provisions made the provisions made in this regard would not be of any use. The policy objective behind enactment of such statutory provisions and designing of EOU scheme to make available duty free material for manufacturing export goods would be entirely defeated. 15. Learned consultant for the Revenue Shri K.M. Mondal had admitted that there is no dispute that the respondent EOU is licensed as a private bonded warehouse in terms of Section 58 of the Customs Act. However, he submits that even than it cannot be said to be at par with any private bonded warehouse, inasmuch as EOU scheme is a special scheme with the main objective to promote exports and the EOU is required to execute a single all purpose B-17 bond in prescribed form undertaking to fulfill the condition stipulated in the exemption notification for EOU. He also submits that there are special procedures enacted for EOUs like procurement of business goods without payment of duty against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments raised by Shri Mondal stands considered by the Larger Bench decision of the Tribunal in the case of Paras Fab International. Fine distinction drawn by Shri Mondal between private bonded house and 100% EOU are of no help to the Revenue, inasmuch as the issue on the said dispute stands answered by the Larger Bench in the case of Paras Fab International which even Shri Mondal has also not denied. Further, the fact of payment of duty at the time of filing bill of entry for warehouse "Under Protest" will also not change the legal position that 100% EOU is required to pay duty only at the time of clearances of warehoused goods for home consumption. To arrive at the decision other than the one declared by the Larger Bench, would amount to sitting in the appeal over the Larger Bench judgment, which is not permissible under the law. As a division bench we feel bound by the law declared by the Larger Bench. By following the law declared by the Larger Bench decision in the case of Paras Fab International that 100% EOU is not required to discharge any duty liability in respect of the imported goods warehoused in their premises and used for the purpose of manufacturing in-bond, we hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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