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TMI Blog2014 (2) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Central Excise, Belapur, Navi Mumbai, wherein he has been pleased to confirm the amount of duty (SAD including Edu. Cess and SH Edu. Cess) in respect of clearances effected by the appellant's EOU unit to its other units located in DTA by way of stock transfer under proviso to Section 11A(1) of the Central Excise Act, 1944 and thereafter under Section 11A(1)(a) of the Act besides the order to recover interest thereon under Section 11AB and also levied penalty under Rule 25 of the Central Excise Rules, 2002. The details of order in original are as under:- OIO date Period Total demand Penalty 23.3.2011 February, 2009 to October, 2009 Rs.4,81,41,421/- Rs.4,81,41,421/- 31.1.2012 November, 2009 to August, 2011 Rs.4,10,84,593/- Rs.40,00,000/- Being aggrieved, the appellant is in appeal before this Tribunal. 2. The brief facts of the case are that the appellant is a 100% EOU located at Taloja, Dist. Raigad, Maharashtra. The appellant are engaged in the manufacture and marketing of oleo chemicals and personal care products for domestic and international market incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods which are exempt from the whole of the duty of customs leviable thereon or in case of which "Free"or "Nil"rates of duty of Customs are specified in column (4) under the First Schedule of the Customs Tariff Act, 1975 (51 of 1975) and which are also exempt from the whole of additional duty of customs leviable thereon under Section (1) of section 3 of the said Act, or on which no amount of the said additional duties of customs is payable for any reason. In view of the aforesaid legal provisions, the EOU is required to pay SAD @4% or at the effective rate prescribed under Notification No. 20/2006-Cus, being part of the aggregate duties of Customs on sale of the goods manufactured by it and cleared into DTA under Section 3 of the Central Excise Act, 1944 and if the effective rate of SAD is NIL, then SAD will not be included in calculating the aggregate duties of Customs for purpose of levy of Central Excise duties under Section 3 of the Central Excise Act, 1944. Besides the above Notification No. 20/2006- Cus, the Central Government by Notification No. 23/2003 dated 31.03.2003, has exempted the goods manufactured and produced in an EOU and cleared to DTA from levy of SAD subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following grounds before this Tribunal. (i) Vide Notification NO. 20/2006-Cus dated 1.3.2006, the Central Government in exercise of the powers conferred by Section 25(1) of the Customs Act,1962 exempted to goods from the whole of the duty of customs leviable thereon or in case of which "Free"or "Nil"rates of duty of customs are specified in column (4) under the First Schedule of the Customs Tariff Act, 1975 (51 of 1975) and which are also exempt from the whole of additional duty of customs leviable thereon under sub-section (1) of section 3 of the said Act, or on which no amount of the said additional duties of customs is payable for any reason. The goods may belong to any chapter heading. (ii) Further, vide Notification NO.23/2003-CE dated 3.1.2003, the Central Government has exempted excisable goods (any chapter, all goods) to the First Schedule of the Central Excise Tariff Act, 1985, produced or manufactured in an EOU or an Electronic Hardware Technology Park (EHTP) unit or a Software Technology Park (STP) unit and brought to any other place in India in accordance with the provisions of Foreign Trade Policy and subject to the relevant conditions specified in the Anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said notification. The question formulated by the Authority was "whether the goods/stock transferred by the applicant from the SEZ unit would be eligible for exemption from the payment of SAD under Notification No.45/2005-Cus dated 16.5.2005?"The Authority held that the position is clear, Notification NO. 45/2005-Cus exempts all goods cleared form SEZ and brought to any of the place in India from the SAD levied thereon under Section 3(5) of the Customs Tariff Act, 1975. However, when such goods are sold in DTA and/or exempted by the State Government from the payment of Sales Tax/VAT, such exemption is not available. (vi) Further reliance is placed on the ruling of the Hon'ble Andhra Pradesh High Court in the case of Bharat Electronics Ltd. Vs.Dy. Commissioner (CT)-2011 (46) VST 170 (AP), wherein in para 8, the definition of "sale"under Section 2(g) of the CST Act has been noticed that "there must be a transfer of property in goods for consideration by one person to another to constitute a sale."Further, it was held that transfer of goods from one unit of the assessee to another is in the nature of stock transfer and would not, by itself and without anything more, constitute s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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