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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 ..... required to pay any NCCD, Education Cess and SHE Cess. - C/215-216, 350-352, 133-134 , 191-193 of 2010 - A/536-545/2011-WZB/AHD - Dated:- 17-3-2011 - Ms. Archana Wadhwa, Shri B.S.V. Murthy, JJ. REPRESENTED BY : Shri K.M. Mondol, Commissioner (DR), for the Appellant. S/Shri J.C. Patel, Advocate and Vipin Kumar Jain, for the Respondent. [Order per : Archana Wadhwa, Member (J)]. All the appeals filed by the Revenue against the impugned order of Commissioner (Appeals), are being disposed off by a common order as the issue involved is identical. 2. As per facts on record, the respondent herein M/s. Reliance Industries Limited is a 100% EOU they have imported various consignments of crude petroleum oil at Sikka Port and sought the clearance of the same without payment of duty by filing into-Bond bill of entry. The said goods were taken clearance of and deposited in the bonded warehouse situated within the jurisdiction of the Assistant Commissioner, Central Excise, Jamnagar Division, without payment of duty, under the provisionally assessed warehousing bills of entry, against procurement certificate issued by the proper officer of Central Excise. In some of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from warehouse in these cases, the question of payment of any duty on such goods, does not arise. For the above proposition they relied upon the Tribunal decision in the case of Natural Stone Exports Limited v. CCE - 2006 (198) E.L.T. 440; DSL Software (India) Limited v. CCE - 2005 (181) E.L.T. 250; CCE v. Infosys Technology Limited - 2003 (159) E.L.T. 863. 4. The Commissioner (Appeals) vide his impugned orders held that the NCCD leviable on the imported Crude Petroleum Oil under Section 134 of Finance Act, 2003 is neither specified in the first schedule to the Customs Tariff Act, 1975, nor levied under Section 3 of the Customs Tariff Act, 1975 and therefore, the exemption granted from the duty of customs specified in the first schedule of Customs Tariff Act, 1975 and additional duty of customs levied under Section 3 of the Customs Tariff Act, 1975 in respect of imports made by the 100% EOU in terms of Notification No. 52/2003-Cus., dated 31-3-2003, cannot be said to be exempting NCCD Cess and other Cess. Accordingly, he held against the respondents in respect of the above issue by holding that in the absence of any Notification under Section 25 of the Customs Act, 1962, granti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were duly warehoused in the licensed/registered warehouse of the appellants EOU for which rewarehousing certificates issued by the jurisdictional Central Excise officers were received by the Customs. No clearance for home consumption of the imported Crude Oil has been alleged in the impugned order. 7. On the basis of above reasoning, the Commissioner (Appeals) held that respondents were not liable to pay any NCCD as well as SHE Cess and Education Cess. The said order of Commissioner (Appeals) is impugned before us. 8. We have heard Shri K.M. Mondal, learned consultant appearing for the Revenue and Shri J.C. Patel, learned advocate appearing along with Shri Vipin Jain, for the respondents. Shri Mondal has filed written submissions in support of his arguments. The respondents have also filed rejoinder in response to the written submissions filed by Shri Mondal. 9. After carefully considering the submissions made by both sides, we note that the sole issue required to be decided in the present appeal of the Revenue is 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise. The appellant submits that Crude Oil imported by them for captive use were cleared by CH Sikka against procurement certificate issued by the jurisdictional Central Excise Authorities with whom they had executed bond and all the consignments were cleared against In-bond bills of entry and the imported goods were duly warehoused in the licensed warehouse of the appellant 100% EOU for which re-warehousing certificates have been issued by the jurisdictional Central Excise authority. Every 100% EOUs have licensed private bonded warehouses within the meaning of Section 58 of the Customs Act, 1962. Once the imported goods have been warehoused in the licensed warehouse of 100% EOU, it shall be for the authority vested with the administrative control over the EOU to take action for any violations under the Customs Act, 1962 including demand on account of short levy/non-levy, etc. on such warehoused goods. Accordingly, keeping in view the Board s circular No. 31/2003-Cus., dated 7-4-2003, the authority vested 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction for raising demand for short levy or non-levy will be clearly with the Customs authority at Sikka Port. As such, he submitted that atleast in those cases where the customs duty was paid at Sikka Port, the jurisdiction to raise the demand would lie with the customs authority at Sikka Port. 13. However, we do not find any merits in the above contention of the learned advocate appearing for the Revenue in artificially dividing the jurisdiction. As held by the Larger Bench in the case of Ferro Alloys Corporation Limited v. CCE (Appeals), Bhubaneshwar, the jurisdiction for raising demand for short levy, in respect of the goods imported by an 100% EOU and warehoused into 100% EOU, which is licensed under Section 58 as a private bonded warehouse, lies with the proper officer having jurisdiction over the EOU and not with Customs House, where the goods were assessed on an into bond bill of entry for the purpose of being warehoused. As such, the said decision clearly lays down that the jurisdiction to 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% EOU is licensed as private bonded warehouse under Section 58 of the Customs Act, 1962. The imported goods are required to be imported directly to such premises and a manufacturing is required to be done within the bonded premises. By taking note of the provisions of Customs Act as also the Customs Manual, it was observed that neither speaks of any requirement to pay any duty on the warehoused goods which are used for manufacture in bond nor it require filing of any ex-bond bill of entry at that stage. Sections 68 of the Customs Act, dealing with clearance of the warehoused goods for home consumption require filing of ex-bond bill of entry for payment of import duty and other charges. Section 65, which deals with manufacturing in bond does not required any filing of ex-bond bill of entry or payment of duty before taking warehoused goods for manufacture inside the bonded premises. There is also no provision treating the said goods as deemed to have been removed for the purpose of Customs Act. As such, 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 asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption that no manufacturing involved can be undertaken by an importer other than 100% EOU. Respondents have drawn our attention to the provisions of Section 65(1) of the Customs Act which clearly providing that owner of any warehoused goods may carryon manufacturing operations in the warehouse in relation of such goods. As such, they have submitted that there is no difference between the 100% EOU warehouse and the other private bonded warehouse. The respondents have further 1 argued that the Revenue s contention that inasmuch as they have paid duty in 257 bills of entry at the time of assessment, the Larger Bench decision will not apply to such bills of entries, is totally perverse. Inasmuch as the duty was paid under protest, it will not alter the legal position that a 100% EOU being Customs Bonded Warehouse, there was no requirement to pay duty in respect of the warehoused goods except where the same are cleared from the warehouse for home consumption. 16. However, we find that all arguments 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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