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TMI Blog2018 (8) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... STAT CHENNAI], where it was held that For calculating the duty of excise for the purpose of discharging CVD liability, any notification issued in respect of the goods cleared by EOU also has to be taken into consideration. Appeal dismissed - decided against Revenue. - Appeal No. E/387/2011 - Final Order No. 42123 / 2018 - Dated:- 25-7-2018 - Hon ble Ms. Sulekha Beevi, C.S., Member ( Judicial ) And Hon ble Shri Madhu Mohan Damodhar, Member ( Technical ) Shri A. Cletus, ADC ( AR ) For the Appellant Ms. D. Naveena, Advocate For the Respondent ORDER Per Bench The respondent herein is a 100% EOU manufacturing cotton terry towels. While clearing finished goods to Domestic Tariff Area (DTA), they had calculated Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.4 The very same issue was considered by the Tribunal in the case of CCE, Lucknow vs Srivatsa International Ltd 2015 (326) ELT 699 (Tri.-All.). The relevant portion is reproduced as under : 6.1 Duties of Central Excise are levied under Section 3(1) of the Central Excise Act. Duties of excise on excisable goods produced by a 100% EOU are levied under proviso to Section 3(1). This duty shall be equal to the aggregate of customs duties. While considering the aggregate of Customs duties on like goods produced or manufactured outside India if imported into India, one component of the duties is CVD. The CVD is payable under Section 3(1) of the Customs Tariff Act and is equal to the excise duty leviable on like articles produced or manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of excise duty payable on such products produced in India. And if such duty payable is a concessional rate of duty in terms of a Notification, the same notification will apply for calculating CVD on goods produced and cleared by a 100% EOU. The findings of the Commissioner (Appeals) on this issue are not very clear. However, in view of our analysis, we agree with his conclusion that the proviso to Section 5A(1) of the Central Excise Act is only applicable to the implementation of main Section 3(1). Our view finds support in the judgment of Hon ble *Himachal Pradesh] High Court in the case of Satya Metals v. Union of India - 2013 (290) E.L.T. 514 (H.P.) in which in Para 20, it was held that the proviso to Section 5A of Act‟ cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on like goods produced or manufactured outside India, if imported into the country. In other words, the duty payable shall be determined in exactly the same manner as is done in respect of imported goods. This implies that for determining the duties of excise under proviso to section 3(1) of the Central Excise Act, 1944 on the goods cleared to the DTA by the EOUs, the exemption under the relevant Customs Notifications and Excise Notifications, if any, have to be provided. Therefore, I am of the view that the assessee is liable to pay only the effective rate of Additional Duty of Customs under section 3(1) of the Customs Tariff Act on clearances of the goods into the DTA. This view is supported by the ratio of the decisions referred and rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... among other duties, excise duty equivalent to CVD payable on imported reprocessed plastic materials (e.g. plastic granules/agglomerates) in respect of their DTA clearances of such materials/goods. The Delhi Court relied upon the decisions of the Supreme Court in Hyderabad Industries [1999 (108) E.L.T. 321 (S.C.)] and Thermax Private Limited [1992 (61) E.L.T. 352(S.C.)] and held as under : 8. As observed in the aforesaid quoted portions by the Apex Court, for the purpose of attracting additional duty under Section 3 of the Tariff Act, on the import of a manufactured or produced article, the actual manufacture or production of a like article in India is not necessary. Said provision specifically mandates that CVD will be equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat High Court in the case of Varsha Exports and Others v. UOI and Others - 2000 (40) RLT 9 (Guj.) and letter F. No. 305/113/94-FTT, dated 19th February, 1998 of the Central Board of Excise and Customs, to hold that the additional duty of Customs (CVD) was payable 9 at effective rate and not at tariff rate in the case of clearance of goods by an 100% EOU in the DTA. Appeal filed by the department in Supreme Court against the decision of the High Court, was dismissed. The Tribunal also relied on Board s clarification in letter F. No. 305/113/94-FTT dated 19th February 1998 which laid down that effective rate of duty was payable. 8. It can be seen from the above reproduced findings of the Adjudicating Authority that he has correctl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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