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TMI Blog2017 (5) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a 100% EOU, cleared inputs procured by them on payment of applicable duties by debiting the duties in CENVAT account. It is the case of the Revenue in the show-cause notices that the respondent having imported and indigenously procured materials / inputs by availing benefit of Notification No.52/2003-Cus. dt. 31/03/2003 and No.22/2003-CE dt. 31/03/2003 did not pay any duties on the inputs but while clearing the same they are required to pay applicable duties which should be paid in cash and cannot utilise the CENVAT credit. The audit raised this query which was followed by show-cause notices to the respondents. The show-cause notices in question seek to demand the duty amounts under the provisions of Section 11A(1) of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g me through the Orders-in-Appeal submits that i. the Commissioner(Appeals) has erred in allowing the appeal by holding incorrectly that the inputs received duty free by the respondents when cleared as such were equated wrongly as clearance of finished goods from EOU to DTA; ii. the respondent/assessee is a 100% EOU and duty free imports were cleared into DTA for which duty liability has to be paid in current account only. It cannot be done so by debit in the CENVAT account as the inputs which are imported were governed by the provisions of Notification No.52/2003-Cus. Hence Department has foregone the customs duty on such imports; iii. the duty exempted at the time of import is the customs duty and the same is required to be paid in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able duties. It is his submission that the entire show-cause notice seeks to demand the Central Excise duty under the provisions of Section 11A of the Central Excise Act which would mean that the amounts paid or debited by the appellant in the CENVAT account is towards Central Excise duty only. Hence the point which has been raised in the Department's appeal that imported raw materials cleared as such needs to be discharged with Customs duty is a new point which was not in show-cause notice. He would also draw my attention to the show-cause notice and submit that the show-cause notice only seeks to demand duty which has already been debited in CENVAT account and nothing arose as to whether the valuation is right or the inputs has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that respondents are 100% EOU; procured inputs indigenously as well as imported the same by claiming the benefit of Notifications Nos.52/2003-Cus and No.22/2003-CE which enables them to import the goods without payment of duty; they have sought the permissions of the authorities to clear the inputs which they are unable to consume in 100% EOU; authorities granted permission to respondents for clearance of such inputs to DTA on discharge of applicable duties; the applicable duties have been discharged by the respondent by debit in the CENVAT account considering them as Central Excise duty. 7. I find that the first appellate authority while setting aside the demands raised by the adjudicating authority has recorded the following findings: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of CCE&C, Visakhapatnam-I Vs. Matrix Laboratories Ltd. in Final Order No.932&933/2011 dt. 23/12/2011. The ratio of the said decision is in paragraph No.5 which I reproduce. 5. I have given careful consideration to the submissions. It appears from the records that the respondent was a DTA unit prior to December 2007. In this case, they had procured inputs and capital goods by way of import and also from indigenous sources and had taken CENVAT credit of CVD/Central Excise duty paid thereon. Apparently, it was out of such accumulated credit that the respondent made part-payment of duty on the inputs (imported duty-free under Notification No. 52/2003-Cus.) cleared as such to the DTA unit. It is not deniable that such DTA clearances were ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l dt. 23/12/2011 has also not been upset by any higher judicial forum. On perusal of the final order dt. 23/12/2011, I find the Bench of the Tribunal in the case of Matrix Laboratories Ltd. [Final order dt. 23/12/2011] was dealing with an identical situation as is in this case and held in favour of the assessee therein, and the same needs to be followed by me as there is no contrary view brought to my notice.
9. Since I have disposed of the appeals on the merits following the law as laid down by the Tribunal in the case of Matrix Laboratories Ltd., I am not recording any views regarding various other submissions made by both sides.
10. In view of the foregoing, the appeals are rejected.
(Order pronounced on 12/05/2017) X X X X Extracts X X X X X X X X Extracts X X X X
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