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TMI Blog2012 (10) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... arise for consideration are that the appellant herein is a 100% EOU. The appellant was permitted by Development Commissioner to import burned transformers and dis-assemble them and thereafter segregate dis-assembled transformer in respect of copper/aluminium/ferrous waste and scrap. The appellant was issued a Show Cause Notice demanding Central Excise duty and Customs duty foregone on the transformers imported and brought into EOU which was adjudicated and confirmed by the lower authorities. Appeal against lower authorities was also rejected by first appellate authority. Hence, this appeal. 4. Ld. Counsel would draw our attention to the Show Cause Notice and Order-in-Appeal. It is his submission that the appellant made clearances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics Pvt. Ltd. v. C.C.E., Surat - 2010 (259) E.L.T. 408, in case of STL Exports Ltd. v. C.C., Indore - 2004 (164) E.L.T. 179, in the case of C.C.E., Surat v. Amitex Silk Mills Pvt. Ltd. - 2007 (216) E.L.T. 589 upheld by Hon'ble Apex Court 2010 (254) E.L.T. A98 (S.C.). 5. Ld. A.R. on behalf of the Revenue, on the other hand, would submit that the first appellate authority has given detailed reasoning in the impugned order, by which it is very clear that the appellant should have paid full rate of duty while making clearances to DTA. It is his submission that clearance of goods at concessional rate of duty is violation of Para 6.8 of Foreign Trade Policy. It is his submission that a procedure to be followed under Notification No. 21/2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an activity of manufacture by the authorities, which is reiterated by DGFT vide Circular No. 01/92/182/282/Amo4/VCII/431, dated 29-10-2004, wherein the DGFT has clearly indicated that the unit already set up prior to 1-4-2002 have to be treated differently from the unit set up after 1-4-2002. In other words, an unit engaged in segregation activity, which was set up prior to 1-4-2002 would be continued to be treated as manufacturing concern, as for the entire period original LOP, for the purpose of fulfilment of export obligation and grant of other benefits available under the Foreign Trade Policy and Customs and Central Excise laws. This circular has not been withdrawn by DGFT authorities. As is recorded by us earlier, it is undisputed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and produces end use certificate of consumption of the same, benefit of notification cannot be denied to him. We find that in this case, there is no dispute that certificates which was produced are correct, we find that the Tribunal in the case of Ratangiri Textiles, in identical situation held as under : "Both the appellants are 100% EOUs. Being so, their clearances to Domestic Tariff Area (DTA) are liable to duty in terms of proviso to Section 3(1) of the Central Excise Act. The effect of this is that duty payable on the goods cleared by these units would be the aggregate customs duty leviable on similar goods when imported into India. 2. In the present cases, dispute has arisen as to what is the rate at which additional duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat). The judgment of the Gujarat High Court was common for Lucky Star International and Varsha Exports cases. Apart from this, is the Circular dated 19th February, 1998 of the Ministry. The Circular clarified as under : "2. Board have examined the issue carefully and find that the duty leviable under Section 3 of the Central Excise Act is to be calculated after giving effect to the exemption notifications. Therefore, goods produced in EOUs/EPZs cannot be charged to duty at Tariff rate. 3. Normally duty leviable would be read with notification for the time being in force. Even in absence of such words in the notification, the duty leviable would be effective rate of duty only. Even in Section 3 of the Customs Tariff Act, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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