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TMI Blog2016 (9) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... de element of customs duties but the entire duty paid on the invoices will have to be considered as Central Excise duty paid under Section 3(1) of Central Excise Act. Therefore keeping in view the various judgments cited which squarely covers the case of the appellant in his favour, the impugned order is set aside. - Decided in favour of appellant - E/3090/2012 & E/25430/2013 - Final Order No. 20677-20678 / 2016 - Dated:- 30-8-2016 - Shri S. S. Garg, Judicial Member And Shri Ashok K. Arya, Technical Member Mr. Shailendra, CA For the Appellant Mr. N. Jagadish, Superintendent (AR) For the Respondent ORDER Per S. S. Garg The present appeal is directed against the order of the Commissioner (A) dated 9.8.2012 vide which the Commissioner (A) has rejected the appeal of the appellant and upheld the decision of the adjudicating authority. Briefly the facts of the present case are that the appellant is engaged in the manufacturers of electronic connectors, parts of connectors, electronic connector harness and other IT products classifiable under Chapter 85 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant procures duty paid inputs, capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence on record and also contrary to the provisions of CCR, 2004 and Central Excise Act, and therefore not sustainable in law. He also submitted that the Commissioner (A) has not considered the judgments cited by the appellant which squarely covers the case of the appellant. He further submitted that the levy of excise duty on goods manufactured by an EOU and sold in India would be equivalent to the duty paid on import of goods. The measure of computation of duty does not alter its nature of being a duty of excise. He further submitted that in the impugned order at para 5 and the adjudicating authority at para 13.7 have accepted the fact that the duty discharged by an EOU is a duty of excise but have proceeded to restrict the credit of the amount which is equivalent to basic custom duty. He further submitted that once it is accepted that the duty paid is a duty of Excise, the question of dissecting the said duty into different components such as basic custom duty, additional duty of customs or any other customs duty does not arise. In support of his submission, reliance was placed in the case of Vikram Ispat vs. Commissioner of Central Excise, Mumbai reported in 2000 (120 E.L.T. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The nature of the duty levied on the goods from 100% EOU is excise duty and nothing else, whereas for determining the quantum of duty the measure adopted is duty leviable under Customs Act, as held by the Supreme Court in many cases referred to above. The method adopted by the law makers in recovering the tax cannot alter its character. Once it is held that the duty paid by the 100% EOU in respect of goods cleared to any place in India is excise duty, the question of dissecting the said duty into different components of basic customs duty, auxiliary duty, additional duty of customs or any other customs duty does not arise. The proforma of AR-1A on which the reliance was placed by the learned D.R., cannot change the legal position that the duty levied on 100% EOU is a duty of excise and not customs duty. 2.1 He further submitted that Rule 3(1) of CCR, 2004 does not allow CENVAT credit of basic custom duty which is chargeable under Section 12 of Customs Act, 1962; whereas in the present case the duty charged by EOU is a duty of excise charged under Section 3(1) of Central Excise Act. Further there is no restriction under Rule 3(1) of CCR, 2004 on availment of CENVAT credit of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Section 3. Duties specified in First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 to be levied. (1) There shall be levied and collected in such manner as may be prescribed, - (a) a duty of excise to be called the Central Value Added Tax (CENVAT)] on all excisable goods (excluding goods produced or manufactured in special economic zones) which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods excluding goods produced or manufactured in special economic zones specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule. Provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured, - (i) * * * * * (ii) by a hundred percent export-oriented undertaking and brought to any other place in India, shall be an amount equal to the agg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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