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TMI Blog2011 (8) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-cause notice that the respondents cleared the said goods in violation of Section 3 of Central Excise Act and Notification No. 82/92-C.E., dated 27-8-92. They were required to pay Central Excise duty equal to the aggregate of the duties of customs leviable under the provisions of Customs Act after deducting an amount of duty equal to the basic customs duty but the respondents have paid duty at the rate of 8% ad valorem. Therefore, duty of Rs. 1,37,66,441/- was confirmed by the Dy. Commissioner in his Order-in-Original dated 31-1-2002. The respondents have filed an appeal before the Commissioner of Central Excise (Appeals), who vide the impugned order had modified the Order-in-Original passed by the Dy. Commissioner. The Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-Original and stated that the findings given by the Commissioner (Appeals) are not proper as there is a separate Notification No. 82/92 governing the clearances made by 100% EOU. He submitted that the respondents were supposed to follow the Notification No. 82/92 and not the Notification No. 30/97. He, therefore, submitted that the Revenue's appeal may be allowed by the Tribunal. 4. The learned advocate appearing for the respondents has submitted that the issue involved in the present appeal has already been decided by the Tribunal in the case of Lipy Lisy Pharmaceuticals P. Ltd. v. CCE, Mumbai-VII reported in 2004 (171) E.L.T. 118 (Tri.-Del.) and this order has already been confirmed by the Supreme Court on 18-7-2005 as reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional duty of customs was leviable. They also point out that a contrary interpretation so as to levy additional customs duty only creates obstacles to an advance licence holder in the sourcing of import, without in any way benefiting the treasury. 5. We find merit in the contention of the assessee appellant. Its buyer was an advance licence holding export manufacturer. Advance Release Orders were issued to him so as to enable him to procure from Indian producers as well. Since the advance licence was issued under Para 7.4 any import under that licence was eligible for customs duty exemption, including additional duty of customs. The status of advance release order is the same as advance licence. Therefore, supplies against advan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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