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TMI Blog2007 (8) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioners under Section 35B(2) that the order of the Appellate Commissioner was not legal or proper, was contrary to the earlier order of remand made by the Tribunal on 16-2-2005. It was submitted that by the said order of remand, the Commissioner (Appeals) was required to consider the applicability of the Larger Bench decision in Himalya International Ltd. v. CCE, Chandigarh-I, reported in 2003 (154) E.L.T. 580 (Tri.-LB), with regard to the benefits of the Notification No. 2/95. The Commissioner (Appeals) has decided the matter in favour of the assessee and there was no opinion formed on that aspect by the Committee and, therefore, the appeal was not maintainable due to improper authorization to file the appeal. Reliance was placed by the learned counsel for the respondent on the decision of the Larger Bench of the Tribunal in CCE, Mumbai v. Bombay Switchgear, reported in 2001 (134) E.L.T. 658 (Tri.-LB), in which the Tribunal held that the formation of the opinion by the Collector that the order against which the appeal was to be filed is not legal or proper should be reflected from the order directing filing of the appeal or, at any rate from the note-sheet which contained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) had erred. The Committee authorized the Joint Commissioner to file the appeal praying for setting-aside the order of the Commissioner (Appeals). The reasons, which weighed with the Committee of Commissioners would not be justiciable, and it is sufficient that the Committee takes into consideration the relevant facts of the case and records an opinion that the order of the Commissioner (Appeals) was not legal or proper, as has been done in the instant case. There is, therefore, no substance in the preliminary objection raised by the appellant and it is hereby rejected. 3. It is not disputed that the respondent EOU had short paid the duty amount on waste and scrap cleared, that there was shortage of finished goods (auto halogen bulbs) and that there was also shortage in the rejected goods. It was contended that, even if the duty was payable under the proviso to Section 3(1), the respondent was eligible to the benefit of the less rate of duty payable under the said Notification No. 2/95. It was submitted that Commissioner (Appeals) has rightly held that the appellant was eligible to the benefit of the Notification No. 2/95 dated 4-9-1995. 4. The respondent was a 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty, Rule 100D provided that when a manufacturer desires to remove excisable goods from a 100% EOU to any place in India, he was required to make removal of such goods under an invoice signed by the owner of the factory or his authorized agent and it was required that such invoice shall indicate the value of goods any duty involved separately, and also give particulars as may be specified by the CBEC or Commissioner and the triplicate copy of the invoice shall be forwarded to the proper officer within twenty four hours of the removal of the goods. Rule 100E in terms provided that no excisable goods shall be removed inter alia from a 100% EOU to any other place in India except on payment of duty of excise leviable on such goods and under an invoice, signed by the manufacturer or his authorized agent. Sub-rule (2)(a) of Rule 100E provided the manner in which such invoices were prepared and its particulars provided for. These rules and other provisions of Chapter VA have to be read for giving full meaning to the expression "allowed to be sold in India", occurring in the proviso to Section 3(1) of the Act. Admittedly, none of the provisions of Chapter VA were observed by the 100% EO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to deal with such removal for home consumption from 100% EOU. It would appear from the provisions of the EXIM Policy relating to the EOU scheme and the contents of the proviso to Section 3(1) read with Chapter VA of the Rules that, even to the limited extent to which the goods were allowed to be sold in the DTA under the policy itself, the requisite permission from the concerned officer was required in accordance with Chapter VA for their being treated as "goods allowed to be sold in India" under the proviso to Section 3(1). These concessions of sale of such goods were subject to the condition that, the excise duty payable thereon would be the amount of Customs duties that would be attracted to such like goods when imported. The rationale behind this provision is obviously to prevent the abuse of the concessions given to those who set-up such EOU units. The scheme was intended to boost up exports and the very purpose underlying the scheme would be frustrated if a unit purported to have been set up for genuine exports is allowed to divert its production to the DTA by simply paying duty under Section 3(1) read with the Schedule to the Central Excise Tariff Act. In fact, the only r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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