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TMI Blog2015 (11) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... aining the relevant permission, appellant could have cleared the goods to his customers availing the benefit of exemption Notification Nos.44/2002 & 55/2003. Further, the appellant should have every month produced the copies of invoices and other deails including the copy of the letter received from the jurisdictional authorities of his customers to his jurisdictional AC/DC and it is only in this situation, the responsibility of the appellant would have been over and the assessment of the goods would be in order. Since the appellant has cleared the goods without following any of the above procedure, the benefit of above mentioned notification cannot be extended. - Decided against the appellant. The appellant did not produce the end use certificate in time and the Revenue proceeded to recover the differential duty. The appellant thereafter produced the end use certificate and it is in these circumstances, the Hon'ble Supreme Court has taken the view. In the present case, the situation is entirely different. The appellant have not cleared the goods as per the conditions of the notification. No bond was executed. Invalidation certificate, EPCG import licence, etc. were not produced at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 8% under Notification NO.29/2004-CE. Appellants have been denied the benefit of Notification No.2/95-CE and Notification No.23/03-CE - prima facie the appellant will be entitled to the benefit of the said notification. However, the Commissioner has denied due to non-submission of evidence. We consider it appropriate to remand the matter back to the Commissioner for re-examining the same and the appellant will submit permissions given by the Development Commissioner including the ones produced before us within one month from the date of receipt of this order. The appellant may be informed of any further details required, so that they can produce the same in support of their claim. The Commissioner may examine and thereafter decide the eligibility or otherwise. Another issue raised in the impugned order is the denial of benefit of Notification No.52/2003-Cus (earlier NO.53/97-Cus) for imported inputs and Notification No.22/2003-CE dated 31/03/2003 (earlier No.1/95 dated 01/04/95). The said notifications are relating to exemptions on inputs imported or procured locally for the purpose of manufacture. - This dispute is already decided by us in this order and appellant is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clearance of the goods by the appellant. Some of the conditions in the said notifications are in the nature of pre-clearance condition and others post clearance. Since the EPCG licence holders did not submit themselves to the department before the clearance of the goods, pre-clearance procedure was not followed by EPCG licence holders and the post importation conditions could not be monitored by the department. Revenue's case is that under these circumstances, it was incorrect on the part of the appellant to clear the goods at concessional rate of duty to the EPCG licence holders and therefore, Revenue has issued the demand notice for the differential duty of excise from the appellant. In addition to the above, demands have also been issued for the Customs duty involved on the inputs used in the manufacture of goods so cleared as also the excise duty involved in respect of the inputs locally procured. Notices also proposed interest and penalties under various provisions of law. Case was adjudicated by the Commissioner, who has confirmed demand in the impugned order. This is second round of litigation. Aggrieved by the said order, appellant is before us. 3. The learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. The Hon'ble Supreme Court in State of AP v. Hyderabad Asbestos Cement Production Ltd. 1994 (94) STC 410 was quoted to support the point. 3.5 It was further submitted by the learned senior Counsel that it is not that non-compliance of every conditions of Notification No.44/02-Cus and 55/03-Cus will give raise to demand of duty. It is only the non-fulfillment of export obligation and/or failure to give installation certification that can give rise to duty demand. It was submitted that in view of the said position, breach of any condition of the notification other than export obligation cannot lead to raising of the demand by the Revenue. 3.6 The learned Senior Counsel submitted that the "amount of bond", "form of bond" and "to whom the bond has to be executed", has not yet been specified by proper officer. Requirement to execute bond will arise only thereafter. Another submission of the learned senior Counsel was that Foreign Trade Policy is piece delegated legislation by Central Government. It has specified that for indigenous procurement, LUT has to be given to DGFT. Para 2.27 of the Policy was quoted to support the contention. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty for manufacture of excisable goods) Rules, 2001 is another example. It was further submitted that this Tribunal decision in the case of CC v. Dynamic Twisters Pvt. Ltd. 2012 (276) ELT 396 has held that manufacturer is not liable when liability is casted upon the merchant exporter to export the goods. Similarly, this Tribunal decision in the case of Jay Formulation Ltd. v. CCE 2013 (289) ELT 395 (Tri) has held that duty liability in respect of goods cleared by manufacturer exporter against CT-3 certificate issued by merchant exporter is on the merchant exporter only, if the goods are not found exported ultimately. The learned senior Counsel quoted the Tribunal decision in the case of Maruti Udyog Ltd. v. CCE 2000 (124) ELT 1175 (Tri) wherein the assessee cleared the saloon cars on payment of concessional rate of excise duties in terms of Notification No. 162/86-CE. The concessional rate of duty was subject to the condition that the saloon cars are required for use solely as taxies and the manufacturer was required to furnish certificate from concerned State Transport Authority stating that each such saloon cars has been registered for use solely as a taxi. The revenue raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, demand of full customs duty raised in the Show Cause Notices, dated 04/04/2008 is incorrect and is not sustainable. 3.12 Learned Counsel further submitted that exemption from Central Excise duty otherwise available under Notification No. 30/04-CE has to be considered while calculating component of additional duties of customs under Section 3 of Customs Tariff Act, 1975, in view of the law laid down by Hon'ble Supreme Court in the case of SRF Ltd. v. CC 2015-TIOL-74-SC. 3.13 It was further submitted that a converse situation was considered by the Hon'ble Supreme Court in the case of Thermax v. CCE 1992 (61) ELT 352. In that, issue related to levy of additional duty of customs on goods imported into India. The Supreme Court held that for the purposes of computing additional duty of customs, we must forget that the goods are imported into India but assume that goods manufactured in India and that compute excise duty accordingly. This part of the decision has been affirmed by Constitution Bench in Hyderabad Industries v. UOI 1999 (108) ELT 321. 3.14 It was further submitted that there are number of errors committed in computing/demanding the differential excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 2008. 3.17 It was also submitted that the department in demanding differential excise duty in the show cause notices has taken the incorrect rate of BCD. During the period March 2005 the correct rate should be 15% as against 20% adopted by the department. Similarly, during 8 January to 31 March 2004 the correct rate is 20% as against 30% adopted by the department. During the period March 2003 to 07 January 2004 the correct rate is 25% as against 30% adopted by the department. 3.18 Another submission made by the learned Counsel was extended period of limitation is not invocable. Therefore, demand of duty beyond normal period is time barred for first show cause notice dated 13.9.2006. The appellant had filed a letter dated 07/01/2003 and sought clarification from the department and the learned Assistant Commissioner vide letter dated 26/08/2003 had clarified that the appellants can clear the goods at concessional rate of duty subject to fulfillment of conditions of Notification. Thereafter, monthly ER-2 returns filed with the department every month shows the clearances made to EPCG license holder, vide Notification No. 44/2002 and 55/03-Cus, the rate of duty adopted being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Bombay High Court in Commissioner of Customs v. National Leather Cloth Manufacturing 2015-TIOL-342-HC-MUM was quoted. Reliance was also placed upon the case of CC v. Raja Impex (P.) Ltd. 2008 (229) ELT 185 (P&H). As also, the larger Bench decision in the case of Shiv Kripa Ispat Pvt Ltd. v. Commissioner of C.EX & Cus., Nasik, 2009 (235) ELT 623 (Tri.-LB). Similar view has been taken by the Bombay High Court in Finesse Creation Inc. 2009 (248) ELT 122, which was affirmed by Hon'ble Supreme Court. 3.20 The learned Senior Counsel further submits that goods are not liable for confiscation under Section 111(o) of the Customs Act and consequently no penalty under Section 112 is imposable under Customs Act, qua demand of duty on imported inputs. It was further submitted that B-17 bond is not a substitute for invocation of Section 11A of the Central Excise Act. In any case, B-17 bond does not cover clearances of goods into DTA of the present nature. This Tribunal decision in the case of CCE v. Emcure Pharmaceuticals Ltd. 2014 (307) ELT 180 (Tri-Mum) was quoted to support the said contention. 3.21 Senior Counsel submitted that in view of the above submission, the whole demand of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Co. Ltd. 2014 (301) ELT49 ( Ker) (g) Kalpik Interiors v. CST, Delhi - 2014 (36) STR 1283 (T) and in such cases extended period of limitation is applicable. 4.1 Learned Commissioner (AR) further submitted that the person who clears goods under exemption has to fulfill, the conditions and cannot rely on another person fulfilling the condition on his behalf. The person who removes goods manufactured by him has to prove that the conditions of exemption are fulfilled. Learned AR further submitted that even if the person is able to prove that the goods have been used for the specified purpose or that the purpose of the Notification can be demonstrated to have been achieved, yet, the concessional rate of duty under exemption notification or benefit of any scheme under any Rule would not be available if the conditions required to be complied with under the scheme of the notification or Rule are not complied with as mandated and at the point in time when mandated. In support of his contention, the learned AR submitted the following case laws: (a) Vinay Solvent Extraction Industries 2005 (183) ELT 113 (SC) (b) Indian Oil Corporation Ltd. 2012 (276) ELT 145 (SC) (c) CCE v. Harichand S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (AR) further submitted that ER 2 returns are self assessed returns and the very fact that the appellant has self assessed to duty under Notification No.44/2002-Cus and 55/2003-Cus without meeting the conditions prescribed in therein with respect to the execution of bond and guarantee by the consignee, this itself would disentitle the appellant to clear the goods with the benefit of the said notification and in this situation, the duty is required to be demanded by the appellant and appellant alone. It was further submitted that under the Foreign Trade (Development and Regulation) Act, 1992, Foreign Trade Policy read with the provisions of the Customs Act, 1962, the provisions of both statutes need to be met. Any clearance under EPCG Notification needs to meet all the conditions thereof including Bond. It was further submitted that the legal undertaking under HBP and Foreign Trade Policy clearly mandates at para (v) and (xi) thereof. Further, the Customs authorities are the final authority for satisfaction of conditions to be met in a Customs Notification and demand is valid even if EODC is given by DGFT. In support of his contention, the learned Commissioner (AR) quote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Hani Era Textiles 2014 (312) ELT 324 (T) was also quoted. 4.6 It was also submitted that explanation to Section 3(1) of Customs Tariff Act is not similar to the explanation given in Section 3 (1) of the CEA. It was further submitted that the decision of the Hon'ble Supreme Court in the case of Thermax Pvt Ltd. 1992 (61) ELT 352 is not applicable and it is based on a concession by Department that the articles were not covered by any other entry. It was further submitted that only the explanation in the Central Excise Act, 1944 is relevant in this case, it shall override the provisions of the explanation in the Customs Tariff Act even for arriving at the rate of additional duty of Customs component of BED. 4.7 The learned AR further submitted the decision of the Hon'ble Supreme Court in the case of SRF Ltd. 2015 (318) ELT 607 (Division Bench) is sub silentio on the issue and is not binding. Learned AR further submitted the ratio of the decision in the case of Ashok Traders 1987 (32) ELT 262 (Bom) is described as a not good law, even though the ratio of the judgment in the case of Ashok Traders has been held as good law by Full Bench of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in case the appropriate duty on goods cleared in DTA was paid either within 3 months of procurement of duty free material or within 1 year of the procurement of duty free material as per Condition 4(a)(ii) & (iii) of opening paragraph of Notification No.22/2003-CE and Condition 3(d)(I)(ii) &(iii) of Notification No.52/2003-Cus. The conditions and limitations imposed by Notification No.44/2002-Cus and 55/2003 for such clearances have not been met. It was further submitted that the benefit of Notification No.23/2003-CE is not available to the impugned clearances because the conditions of the said Notification are not satisfied as recorded at paragraphs 31 & 32 of the Order-in-Original. 4.11 It was also submitted that appellant has been accorded the concessions of procurement of duty free indigenous and imported materials, facilities of a warehouse under the Customs Act, 1962 and the Central Excise Rules, 2002, the manufacture in bond and removal of such materials and goods produced or manufactured therefrom, on the execution of Bonds with security/surety. The demand and recovery of duty foregone is valid in terms of the said Bonds. It was further submitted that in view of paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for imported goods. In Ashok Traders v. UOI-1987 (32) ELT 262 (Bom.), the issue was availability of exemption from CV duty under Notification No. 302/79-CE dated 4.12.1979 on import of High Density Polyethylene. This exemption was subject to the condition that appropriate amount of excise duty is paid on raw naphtha used for the manufacture of High Density Polyethylene. In other words, this condition of the notification was not similar to the condition of Notification No. 30/2004-CE. 5.3 Learned Senior Counsel also submitted that in Priyesh Chemicals & Metals v. Collr- 2000 (120) ELT 259 (Tri-LB), the issue was relating to availability of the Notification No. 19/88-CE. in respect of import of Zinc Ash into India and the condition was more or less similar to the condition mentioned in Notification No.30/2004. It was further submitted that reasoning of the Larger Bench of the Tribunal in Priyesh Chemicals and cither decisions following the same have now been reversed by the Supreme Court. The learned Counsel further submitted that the Hon'ble Tribunal has distinguished the invocation of B-17 bond in the case of CCE v. Emcure Pharmaceuticals Ltd., 2014 (307) ELT 180 (Tri-Mum). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uivalent to five times the CIF value of the goods imported on FOB basis, as specified in the licence, or for such higher sum as may be fixed by the Licensing Authority, within a period of eight years from the date of issue of licence, in the following proportions, namely :- Sl. No. Period from the date of issue of licence Proportion of total on export obligation (1) (2) (3) 1. Block of 1st and 2nd year Nil 2. Block of 3rd and 4th year 15% 3. Block of 5th and 6th year 35% 4. Block of 7th and 8th year 50%: Provided that where the CIF value of licence is not less than ₹ 100 crores, the export obligation shall be fulfilled within a period of 12 years from the date of issue of licence in the following proportions, namely - S.No. Period from the date of issue of licence Proportion of total export obligation (1) (2) (3) 1. Block of 1st, 2nd, 3rd, 4th and 5th year Nil 2. Block of 6th, 7th and 8th year 15% 3. Block of 9th and 10th year 35% 4. Block of 11th and 12th year 50% : Provided further that Export Obligation of a particular block may be set off against the excess exports made in the said preceding blocks; (3) the importer produces within 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of export obligation up to a period of two years or regularization of shortfall in export obligation, not exceeding five percent of such export obligation, the said block-wise period or overall period of export obligation may be extended and the said shortfall in export obligation be condoned by the Assistant Commissioner of Customs or Deputy Commissioner of Customs : Provided that where the CIF value of licence is not less than ₹ 100 crores extension of overall period of export obligation shall not be allowed : 3. where the goods are found defective or unfit for use, the said goods may be re-exported back to the foreign supplier within 3 years from the date of payment of duty on the importation thereof: Provided that at the time of re-export the goods are identified to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs as the goods which were imported. TABLE S.NO. Description of goods (1) (2) 1. Capital goods. 2. Capital goods in SKD/CKD condition to be assembled into capital goods by the importer. 3. Components of capital goods required for assembly or manufacture of capital goods by the Importer. 4. Spare parts not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002-Cus., dated 19-4-2002] 6.2 Perusal of the said notification would indicate that) the benefit of said notification is available in respect of the goods specified in the table annexed to the said notification. In the table there are four serial numbers covering different categories of goods. First serial number covers the capital goods. There is no dispute between the Revenue and the appellant that; the goods in this case, namely, carpets are covered by the said entry. Paragraph 2 of the said Notification further puts five conditions to avail the benefit of the said exemption. These five conditions in brief are as under: (i) The goods imported are covered by a valid EPCG licence and the said licence is produced for debit by the proper officer of the Customs at the time of clearance. (ii) The importer executes a bond in such form and for such sum and with surety or security as may be specified by the AC/DC of Customs binding himself to fulfill export obligation equivalent to five times of the CIF value of the goods or for such higher sum as may be fixed by the Licensing Authority within a period of eight years from the date of issue of licence. In the condition (ii) above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and use of capital goods in the importer's factory or premises. This is to be done within six months from the date of completion of imports or within such extended period as the said AC/DC may be allowed. (v) The condition (v) is that in respect of condition (iii) above licensing authority can grant extension of block-wise period for any block or overall period of fulfilment of export obligation upto a period of two years or regularization of shortfall in export obligation, not exceeding five percent of such export obligation and the AC/DC may condone the said shortfall in block-wise period or overall period of export obligation. It will thus be seen that the AC/DC is not only empowered to monitor the export obligation over the different years but also is empowered to extend this period upto two years if the licensing authority; has granted similar extension. Similarly, shortfall in export obligation can only be condoned by AC/DC upto 5% even if licensing authority has condoned more than 5%. It is also provided that in respect of licence where the CIF value is ₹ 100 crores'or above no such relaxation can be granted by the AC/DC. 6.3 A reading of the above ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory of production of such goods. Thus, before clearance from the factory of production, conditions which are required to be fulfilled at the time of import are similarly required to be fulfilled at the time of clearance. In case of clearance from a factory the system being followed is self assessment by the manufacturer and there is no concept of assessment by the excise officers. Even the monthly returns are required to be self assessed by the manufacturers and filed to the Central Excise department. The Central Excise department takes up only very few cases for scrutiny. Thus, trust is imposed in the trade and it is the responsibility of the manufacturers/assessees to ensure that the assessment is correct and conditions of the exemption notification are correctly and properly fulfilled. In the present situation, it would mean that the appellant manufacturers should ask his customers whether they have informed their jurisdictional Customs authorities, executed the bond with the concerned authorities relating to the fulfilment of the export obligation as also the block-wise fulfilment of the export obligation. The appellant manufacturer was also required to ensure that the custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of the goods then only appellants were entitled to clear the goods with the benefit of exemption notification. 6.5 We find that the learned Senior Counsel for the appellant has raised many submissions relating to obligation of the customers and not of the appellant. In view of the above discussion, in our view these submissions do not merit any consideration and are required to be rejected. We accordingly reject all such submissions. The learned Senior Counsel has submitted that format of the bond is not specified by AC/DC. No customer of appellant or even the appellant has even approached for it. In any case, these are standard formats which appellant's customer would have executed for import of other goods under EPCG licence. 6.6 We entirely agree with the submission of the learned Commissioner (AR) that the appellant is a 100% EOU and they themselves are procuring the goods under Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 and the said rules are general rules and can be followed whether or not prescribed a particular notification and in the present case the appellant should have asked his customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Dave [1996] 2 SCR 253, held that such a notification has to be interpreted in the light of the words employed by it land not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e,, by the plain terms of the exemption. 23. Of course, some of the provisions of an exemption notification may be directory in nature and some are of mandatory in nature. A distinction between provisions of statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. In Tata Iron and Steel Co. Ltd. (supra), this Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often; the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential. 25. The details to be furnished in Form No. 1 as per R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or "the substantial compliance" of the procedure set out in Chapter X so as to claim the benefit of the exemption notification dated 11 -8-1994. 6.8 We have gone through the Hon'bie Supreme Court judgement in the case of Indian Oil Corpn. Ltd., v. CCE, Vadodara 2012 (276) ELT 145 (SC). In the said judgement, the Hon'ble Supreme Court has observed in para 6 as under: The question whether it was enough to prove to the satisfaction of the Central Excise Officer that the goods are for the intended use specified in the notification of exemption or whether in addition the procedure laid down in Rule 192 of Chapter X of the Rules was also to be complied with for availing concession under the exemption notification was raised before this Court in Thermax Private Limited v. The Collector of Customs (Bombay), New Customs House [1992 (61) E.L.T. 352 (S.C.) (1990) 4 SCC 440] and a two-Judge Bench of this Court held that the possession of a license or production of a C-2 certificate as provided in Rule 192 of Chapter X of the Rules enables the applicant to secure the necessary concession and that the entitlement to the concession, will depend on whether the purchaser is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt point of time is of no consequence. For example the installation certificates, these were to be produced within, six months from the date of clearances, the jurisdictional authorities had the discretion and could have verified whether the carpets cleared were in fact installed in the hotels and are being used for fulfilling the export obligation. This cannot be done at this distant point of time. Similarly, the block-wise export obligation could have been monitored by the authorities and in the event of any failure they could have issued the demand notice. The so called as EODC produced now is with reference to the overall fulfillment export obligation. It is also important to note that as per the explanation provided in the notification, the export obligation is required to be discharged using the goods cleared under the exemption notification. These facts cannot be verified by the said EODCs. It is a well settled principle of law that if particular scrutiny needs to be done at a particular point of time then the same should be done at that point of time and not at any point of time. The learned Senior counsel's another contention was that both the notifications provides fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can look into the documents produced in the proceedings before us. However, as mentioned earlier the bond itself has not been executed, the block-wise export details are not available, It is not known whether the export obligation has been fulfilled using the said carpets and whether the carpets were installed immediately after the clearance, etc. cannot be verified and therefore, the plea is required to be rejected outright. It was also submitted by the Senior Counsel that amount of bond, form of bond and to whom the bond is to be executed etc. have not been specified by the proper officer and only thereafter bond could have executed. We are ' not impressed with such arguments for the simple reason that the appellant's customers or the appellant was required to approach the jurisdictional authorities for the said details. In any case, the form of bond, amount, etc. is a standard format and prescribed by Customs. The appellant customers would have executed such bond for clearance of other goods being imported by them under the same EPCG licence. In view of this position, the plea of the Senior Counsel requires to be out-rightly rejected. Another contention of the learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jay Formulation Ltd. (supra). In the present case, the appellant without ensuring that his customers executes the bond, cleared the goods and therefore, duty has to be demanded from appellant alone. We have also gone through the Tribunal decision in the case of Maruti Udyog (supra) which was affirmed by the Hon'ble Supreme Court. In the said case, there was concessional rate of duty if saloon cars were required to be used solely as taxi and the manufacturer was required to furnish certificate from the state transport authorities to the effect that saloon car is registered as taxi. Maruti Udoyog cleared certain saloon cars which were registered as taxies and they produced evidence of registration to the Central Excise authorities. However, later on some of the buyers of the taxis got the registration changed from taxi to the normal saloon cars and the Revenue wanted the recover the duty from the manufacturer. In these circumstances, the Tribunal took the view that the manufacturer has fulfilled his obligation inasmuch as the saloon cars cleared were initially registered as taxies and therefore, duty cannot be demanded from the manufacturer. Manufacturer has fulfilled his obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed senior Counsel, further submitted that the Hon'ble Supreme Court in the case of SRF Ltd. (supra) has also disposed of the appeal relating to ITC(CA No.1632 of 2009) and the said appeal was relating to the notification NO.30/04-CE which is the same notification which is under dispute in the present case. It was also submitted that the Tribunal has relied upon the following judgement in the ITC case: (i) Motiram Tolaram v. UOI 1999(112) ELT 749 (ii) Ashok Traders v. UOI 1987(32) ELT 262 (iii) Gujarat Plastic Industries v. UOI 2003 (160) ELT 125 (iv) Priyesh Chemicals & Metals v. CCE 2000 (120) ELT 259 and it is after noting these decisions that the Hon'ble Supreme Court has decided the said case. It was also submitted by the learned Commissioner (AR) that these decision of the Hon'ble Supreme Court is not with reference to clearance from 100% EOU and as per explanation to proviso to Section 3 of the Central Excise Act, excise duty is liable to be paid at the highest of applicable rates. This is a deeming provision for goods and make no reference for description and class of articles. Learned Commissioner (AR) further quoted Hon'ble Supreme Court decision in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods. Further Explanation 1 clarifies that where in respect of any such like goods, any duty of customs leviable for the time being in force is leviable at different rates, then, such duty shall for the purposes of this proviso, be deemed to be leviable at the highest of those rates. 7.3 It is to be noted that 100% EOUs enjoy numerous advantages vis-a-vis other units located within India : and producing similar goods. For example, 100% EOU can import and procure locally all capital goods, raw materials, components, consumables, etc. free of Customs duty or excise duty, which is not so in respect of other units located in India or popularly called Domestic Tariff Area (DTA) unit. Concept of 100% EOU was started with an idea that these units will export entire production. However, later on the Government relaxed this condition, and part of the goods were allowed to be sold within India, i.e. DTA and the duty liability in respect of goods cleared In DTA is governed by the above mentioned clause (ii) to proviso to Section 3 (1) of the Central Excise Act, 1944. Explanation 1 specifically provides if goods being cleared from 100% EOUs are chargeable to different rates of any duty of cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquor produced or manufactured in different States or, if a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would be leviable for the time being in different States on the class or description of alcoholic liquor to which such imported alcoholic liquor belongs. Explanation.- In this sub-section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. 8.1 Normally if there is a single rate of excise duty on an article being imported, no difficulty is faced in levying the same as per Section 3 (1). But the difficulty arises when the goods are leviable to more than one rate of excise duty. As per the explanation in such a situation, highest rate of duty is required to be taken. The question arises why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit. In the case of former it may be 12% while for latter NIL or concessional rate. Even manufacturers who are in NIL rate regime would have suffered duty on inputs which may work out to say 10%. Thus both categories of manufacturer suffer duty on the goods manufactured by them, even though in case of latter category, one gets an impression that duty is Nil-Explanation to Section 3 (1) of the Customs Tariff Act comes into play. In such a situation, a highest of the two rates are required to be applied. If that is not done it will defeat the objects and purpose of Section 3 (1) of Customs Tariff Act. For example if such down stream products are imported from abroad then no countervailing duty will be chargeable while the manufacturers of similar goods in India would have paid ether normal rate i.e. 12% or would have suffered the duty on the inputs like granules, dyes, colour etc., used in the manufacture of such final products (which may be say 10% of the value of final product). 8.2 In 2004 a new scheme of excise duty for textile sector was introduced by the Government. As per the new scheme, the duty on yarn stage was collected. However, for the subsequent stages of manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an issue before original authority or in grounds of appeal. It is only during the course of the arguments, the learned Senior Counsel made an additional submissions, as a point of law that the duty applicable in their case would be NIL, in view of the recent judgement of the Hon'ble Supreme Court's in the case of SRF Ltd. 2015 (318) ELT 607 (SC). The learned Senior Counsel has also submitted that the said judgement in addition to the case of SRF Ltd., also disposed of an appeal of ITC Ltd. where the issue was relating to this very notification, i.e. No,30/2004-CE. 8.5 The learned Senior Counsel has made the submission relating to the said case laws, which are elaborated in paragraphs 3.12, 3.13, 5.0 and 5.1 above. The learned Commissioner (AR) on the other hand made his submission that the said decision is not applicable to the facts of the present case, as detailed in para 4.5, 4.6 and 4.7 above. 8.6 Without going into various technicalities raised by the learned Commissioner (AR) such as other decision of the Hon'ble Supreme Court are of three members Bench while the present case is of two members bench, etc. and of learned Senior Counsel submission that notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sm Services Private Limited v. Commissioner of Customs, New Delhi' [Civil Appeal No. 2616 of 2001 - 2015 (318) E.L.T. 3 (S.C.)], the principle which was laid down in Thermax Private Limited and Hyderabad Industries Limited was summarised in the following manner :- The ratio of the aforesaid judgment in "15. Thermax PrivateLimited (supra) was relied upon by this Court in Hyderabad- Industries Ltd. (supra) while interpreting Section 3(1) of the Tariff Act itself; albeit in somewhat different context. However, the manner in which the issue was dealt with lends support to the case of the assessee herein. In that case, the Court noted that Section 3(1) of the Tariff Act provides for levy of an additional duty. The duty is, in other words, in addition to the Customs duty leviable under Section 12 of the Customs Act read with Section 2 of the Tariff Act. The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under Section 3(1) would be the Excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation deals with the situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h all respect to the learned Judge: who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub-silentio at p. 153 in these words: "A decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure of scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 15. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily Inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t similar issue had come up before this Tribunal in the case of Hanil Era Textile Ltd. 2014 (312) ELT 324 (Tri-Mum) which was also a 100% EOU and the goods were being cleared in the DTA. In the said case, this Tribunal has observed as under: 11.6 However, while computing the Customs duty, basic Customs duty is to be seen from Customs Tariff Act read with exemption notification of Customs duty. However, Additional duty of Customs or CVD is leviable as per Section 3(1) of the Customs Tariff Act, 1975. The said sub-section reads as under :- "Section 3. Levy of additional duty equal to excise duty, sales tax, local taxes and other charges. (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Provided………………. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking specifically mandates that where in respect of any such like goods, any duty of Customs leviable for the time being in force is leviable at different rates, then such duty shall, for the purposes of this proviso, be deemed to be leviable at the highest of those rates. We have no hesitation in holding that Notification No. 30/2004-C.E. is not applicable to the imported goods as conditions prescribed therein cannot be satisfied on the goods produced or manufactured outside and imported into India. Even for the sake of argument, if it is assumed that it is applicable, in view of Explanation to Section 3(1) of the Customs Tariff Act, 1973 as also Explanation 1 to Section 3(1) of the Central Excise Act, 1944 (which is specific to 100% Export Oriented Units), we have no hesitation in holding that rates prescribed under Notification No. 29/2004-C.E., which are higher than prescribed under Notification No. 30/2004-C.E. will be applicable. We accordingly hold that Additional duty of Customs will be computed as per Notification No. 29/2004-C.E. and Notification No. 30/2004-C.E. 8.9 Keeping in view the above analysis, in our view the judgment of the Hon'ble Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EEPZ-SEZ/28/32/97/01-02/8006 dated 08/10/2008 from Development Commissioner, SEEPZ SEZ stating that the performance of the unit has been monitored for the block period 2003-2004 to 2007-2008 and it is confirmed that appellant have fulfilled NFE for the aforesaid period on cumulative basis. Another letter No.SEEPZ-SEZ/EDU/28/37/97/ 01-02/VOI.IV/7051 dated 28/04/2015 is produced to support this contention. We have considered the submissions and we find strength in the arguments of the Senior Counsel. In our view, prima facie the appellant will be entitled to the benefit of the said notification. However, the Commissioner has denied due to non-submission of evidence. We consider it appropriate to remand the matter back to the Commissioner for re-examining the same and the appellant will submit permissions given by the Development Commissioner including the ones produced before us within one month from the date of receipt of this order. The appellant may be informed of any further details required, so that they can produce the same in support of their claim. The Commissioner may examine and thereafter decide the eligibility or otherwise. 10. Another issue raised in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be re-examined by; the Commissioner to give specific findings whether the proviso to Section 11A could be applicable in the circumstances and also whether the B-17 bond alone is enough and there is no need to refer Section 11A. We remand the matter for this purpose both sides will be free to advance the factual position as also the legal arguments. 11.1 We find in the adjudication order, the goods valued at ₹ 24,48,22,507/- which have been cleared without proper assessment and payment of duty has been confiscated under Rule 25 of the Central Excise Rules, 2002 and the appellant has been given an option to the noticee to redeem the same on a fine of ₹ 2.00 crore. We find in the present case, the goods are not available for confiscation. Moreover, the goods were cleared on payment of duty (though there is a dispute about the rate/quantum of duty). In our considered view this is not a appropriate case for redemption of fine. We therefore, set aside the redemption fine imposed. 11.2 During the course of the arguments, the learned Senior Counsel for the appellant also raised number of issues relating to duty, etc., which are detailed in paragraph 3.14 to 3.17. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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