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TMI Blog2017 (11) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case the CESTAT being the last fact finding body was justified in drawing conclusion that appellant has taken no permission to sell the goods in DTA, when there was no need of permission as per EXIM Policy para 9.9 for the period 1997-2002 ? 3. The facts of the case are that the appellant company is by status a 100% EOU unit licenced u/s 58 and 69 of the Customs Act, 1962 and is engaged in manufacturing of halogen lamps classifiable under Chapter Heading No. 8539.90 of the Central Excise Tariff Act, 1985. The appellant was granted letter of permission/ intent by the Development Commissioner, New Export Process Zone (NEPZ), Noida for granting 100% EOU status in lieu of fulfilling export obligations. Further with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and could not be explained to the Central Excise officers at the time of their visit. The Penalty is not imposable. It was submitted that the entire duty amount which was calculated by the Central Excise officer was immediately deposited, though the amount calculated should have been in accordance with the provisions of Notification No. 2/95-CE dated 4.1.1995 as amended. Therefore, the assessee deposited much more duty as was required to be paid. The refund has been requested in the preceding paras. Since the assessee have deposited duty much earlier that the issue of the show cause notice, the penalty under section 11AC of the Central Excise Act, 1944 and Rule 209 of the Central Excise Rules, 1944 is not imposable. They placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1985. The officers of the Department visited the appellants premises on 24.2.99, 25.2.99 and 1.3.99 and noticed following discrepancies. a. The appellants had short paid Central Excise duty amounting to Rs. 28,546/- on waste and scrap cleared by the. b. The shortage of 13885 nos of finished Auto Halogen Bulbs valued at Rs. 4,48,743/- involving Central Excise duty amounting to Rs. 2,86,447/- c. On comparison stock register for the year 1996-97, 1997-98, 1998-99, the officers found a shortage of 9684 rejected bulbs/capsules involving duty amounting to Rs. 38,241/-. 7. I have carefully gone through the case records, submissions already made in appeal memorandum and submissions made at the time of personal hearing. As per directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Foreign Trade by a Public Notice issued in this behalf." 5.2 It is contended that the intimation was sent by letter dated 2.6.98 which reads as under: "Office of the Assistant Commissioner Central Excise Division Jaipur(U) C.No. VIII 40/12/AC/EOU/98/5583 Dt. 2.6.98 To, The Superintendent Central Excise Range VKIA III Jaipur Sub:- M/s Autolite (India) Ltd. Jaipur 100% EOU request for permission for DTA sale at concessional rate of Duty. Please refer to your office letter C No. CE-20/AC/VKI III/PR/98/374 dt. 21.5.98 on the above subject eclosing the above units request letter No. AC/100/EOU/98-99 dt.20.5.98 As per the Assistant development commissioner NEP2 Noida letter No NEP2/3-4/91-100%EOU/3037 dt. 1.5.98 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the adjudication authority stands restored." 5.5. He also contended that exemption under the notification shall not be availed until the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the said goods, including software, rejects, scrap, waste or remnants and pointed out the following conditions:- (a) being cleared for home consumption, other than scrap, waste or remnants are similar to the goods which are exported or expected to be exported from the units during specified period of such clearances in terms of Export and Import Policy, (b) the total value of such goods being cleared under paragraph 6.8 of the Export and Import Policy, for home consumption from the unit does ..... X X X X Extracts X X X X X X X X Extracts X X X X
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