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TMI Blog2017 (11) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 - - - Dated:- 8-11-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Siddharth Ranka For the Respondent : Mr. P.K. Kasliwal with Mr. Priyesh Kasliwal JUDGMENT 1. In these appeals common questions of law and facts are involved, hence, they are decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has partly allowed the appeal preferred by the assessee. 3. Counsel for the appellant has framed the following questions of law:- In DB Excise Appeal No. 72/2017, 73/2017, 74/2017, 75/2017 76/2017 i) Whether the ld. CESTAT was correct in law in extending the benefit of concessional rate of duty to the assesse in respect of scrap sale subject to the approved limits of SION fixed by the DGFT, when no such norms were fixed during the relevant period when such scrap were sold which is in violation of conditions prescribed under Notification No. 23/2003 dt. 31.03.2003? ii) Whether the CESTAT ought to have remanded matters to Original Adjudicating Authority after a pasage of 13 years since issue of first SCN, passage of 11 yers since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question cleared by them in DTA under notification no. 23/2003-CE dated 31.03.2003. The contention of the appellant that they had applied to the Development Commissioner for fixing inputoutput norms but till date no norms were fixed by the Development Commissioner in their case does not help the appellant in as much as they cleared the scrap in question without fulfillment of the requirement of fixation of the input output norms by the Development Commissioner for availing benefit of concessional rate of duty under notification no. 23/2003-CE dated 31.03.2003 read with Paragraph 6.8 of the Export and Import Policy. I observe that clearance of the scrap in question at concessional rate of duty cannot be made in terms of the above provisions without fulfillment of statutorily stipulated conditions. It is well settled that exemption notifications are to be given strict interpretation. As such the appellant was not entitled to clear the scrap at concessional rate of duty under the said notification no. 23/2003-CE dated 31.03.2003 during the relevant period. I further observe that the appellant cleared the scrap in question during the period from October, 2003 to December, 2005 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Noida Special Exonomic Zone in which the input output norm has been fixed on the basis of the request made by the appellant vide their letter dt. 29.03.2012. He further brought to my notice that for periods subsequent to those covered by the appeals presently under consideration, the Commissioner (Appeals) has considered the SION norms and had set aside the demand for confirmation of differential duty and remanded the matter to the original authority for de novo decision in the matter. In line, with the above remand order of Commissioner (Appeals), the original authority has since dropped the demand for differential duty in respect of subsequent period. Accordingly, he prays that the period covered by the present appeal may also be decided in their favour. 5. At the time of clearance of the scrap in DTA the SION norms were not available to the appellants. However, the same has since been fixed by the DGFT vide their letter dt. 23.2.2009. The concessional rate of duty @ of 30% envisaged under Notification no. 23/2003 dated 31.3.2003 is available in cases where such scrap has been allowed to be cleared in DTA. The differential duty has been demanded for different periods by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also relied on the judgment in case of JSB India Ltd. vs. Commissioner of Central Excise, Pune-I reported in 2014 (301) E.L.T. 241 (Tri.-Mumbai) wherein it has been held as under:- The Revenue arrived at assessable value of goods as per the verification done by the Deputy Director (Cost) CE Pune-I. The Deputy Director (Cost) in his report dated 1-2-2010 find that applicants are not taking in consideration the Selling and Distribution Expenses, and fixed overhead expenses, while arriving at the assessable value of goods. Further, we find that applicant cleared scrap to DTA for availing benefit of Notification No. 23/2003-C.E. : MANU/EXCT/0003/2003, dated 31-3-2003, Prima facie we find merit in the contention by the Revenue that applicant had not fulfilled the condition of the benefit of notification. In view of these circumstances, we find that applicant had failed to make out a case for total waiver of duty. Keeping in view the facts and circumstances of the case, the applicants are directed to deposit an amount of ₹ 10,00,000/- lakhs in addition to the amount already deposited within eight weeks for hearing of the appeal. On deposit of the above mentioned amount, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted by assessee and submitted their report vide their letter C.N. V (Misc.) 02/Adj/II/2009/3187 dated 14.03.2011 that the matter has been reexamined in terms of para 6 of Order in appeal No. 202(DK)CE/JPR-I/2009 dated 24.08.2009 passed by the Commissioner(Appeals) Central Excise Jaipur-I for scrap cleared during the period (April 2007 to Sept. 2007) involved in the Show cause notice. It is observed that the SION norm in terms of the provisions of the Foreign trade policy was fixed on 20.03.2009 whereas period covered under the SCN is April 2007 to September, 2007 and the show cause notice was issued for whole quantity of scrap cleared. Whereas in terms of para-6 of aforesaid OIL the excess quantity cleared than quantity as per fixed norms was to be taken for demanding duty in the show cause notice. It is found that as per norms the assessee could clear a quantity of 325819.5 KG (Chart enclosed) whereas in actual they have cleared 318255.02 KG as mentioned in the show cause notice which limit of norms fixed for the assessee. I find that the jurisdictional Assistant Commissioner Central Excise Division Bhiwadi has verified the actual scrap cleared during the period involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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