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TMI Blog2015 (11) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. No infirmity in the findings of the Tribunal [2006 (12) TMI 296 - CESTAT, AHMEDABAD] - Decided against Revenue. - Civil Appeal No(s). 4222-4223/2007 With C.A. No. 4354/2007, C.A. No. 4364-4366/2007, C.A. No. 5267-5270/2007 & C.A. No. 4543-4545/2007 - - - Dated:- 30-10-2015 - Mr. A.K. Sikri And Mr. Rohinton Fali Nariman, JJ For the Petitioner : Mr. Yashank Adhyaru, Sr. Adv., Mr. A.K. Panda, Sr. Adv., Mr. Tara Chandra Sharma, Adv., Mr. T.M. Singh, Adv., Ms. Sunita Rani Singh, Adv., Ms. Nisha Bagchi, Adv., Ms. Binu Tamta, Adv., M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Jakson and a penalty of ₹ 10 lakhs and ₹ 5 lakhs has been imposed on Shri Sameer Gupta, Managing Director and Shri P. Rameshan, Vice President respectively by the Commissioner's order in the aforesaid case. 2. The brief facts of these cases are that all the three assessees are 100% EOUs who were supplying goods to EPCG licence holders and accordingly, in terms of Section 3 of the Central Excise Act, 1944, such sales were to be considered as DTA sales for which Central Excise duty was required to be paid, which according to Section 3 of Central Excise Act, 1944 was an amount equal to the aggregate of duty of customs which would be leviable under Section 12 of the Customs Act, 1962 on like goods produced or manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Notification No. 55/03 was not applicable to them. The show cause notices were adjudicated and duties were demanded and penalties imposed by the Commissioner in three orders as has been stated above. 3. Shri Yashank Adhyaru, learned Senior Advocate, appearing on behalf of the revenue, reiterated the submissions made before the Tribunal. His basic submission was that as what was, in fact, paid by these 100 per cent export oriented units was excise duty and not customs duty, the benefit of customs duty exemption notifications will not avail them. The second ground of the show cause notices was not pressed before us as Board circulars have clarified that the condition of import through specific ports is inapplicable to 100% EOUs. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured,- (i) in a free trade zone and brought to any other place in India; or (ii) by a hundred per cent export-oriented undertaking and brought to any other place in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions. The basic issue to be determined is whether the clearances made by 100% EOUs are entitled to concessional rate of Customs duty provide under EPCG Schemes. The adjudicating authority has laid a great emphasis on the fact that what is payable under Section 3 of the Central Excise Act by the 100% EOUs in respect of DTA clearance is the Central Excise duty and not Customs duty and therefore, the exemption notification issued under Customs Act and the exemption notification issued under Section 5A will not be applicable in respect of clearances effected by 100% EOUs unless specifically provided for in the notification itself. We, however, find that the Commissioner has failed to observe that even though what is required to be paid is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.2004 and May, 2005 make it very clear that the concessional rate of duty shall be leviable in respect of clearances effected by 100% EOUs to EPCG units and even the condition of import through specific ports has been clarified to be inapplicable as clearance by 100% EOUs have been considered as clearance from any port in India including the specified port. We, therefore, hold that the concessional rate of duty has been rightly availed of by the appellants and there is no case for further demand of duty. Since there has been no evasion of duty the question of imposition of any penalty on any of the appellants does not arise. We therefore, set aside all the three orders-in-original and allow the appeals of all the appellant. 6. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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