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TMI Blog2018 (9) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... - Appeal No. E/400/2010 - A/30847/2018 - Dated:- 3-7-2018 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri R. Muralidhar, Advocate for the Appellant. Shri Arun Kumar, Deputy Commissioner (AR) for the Revenue. ORDER [Order per: P. Venkata Subba Rao] Heard both sides and perused the records. 2. The appellant herein is manufacture of pharmaceutical products and is a 100% EOU w.e.f 01.05.2007. They obtained approval from the Development Commissioner VSEZ, and cleared goods on payment of duty to the domestic tariff area in terms of Para. 6.8 (H) of the Foreign Trade Policy. The approval was granted by the Development Commissioner specifying that full duties shall be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention of the assessee, that they are entitled to exemption from SAD in terms of Sl. No. 1 of Notification No. 23/2003-CE read with condition No. 1 therein. A show cause notice was issued by the Department seeking to deny that the benefit of notification and to recover differential duty of ₹ 27,10,449/- from them on the ground that the development commissioner had issued permission for domestic clearance of goods on payment of full duties under para. 6.8 (h) of the Foreign Trade Policy. Therefore, it was felt that availment of exemption in respect of SAD at the rate of 4% is irregular and a contravention of the conditions of permission granted by Development Commissioner. It was also proposed to recover this interest amount u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., Vs. CCE, Ahmedabad [2016 (334) ELT 172 (Tri.- Ahmd.)], Moser Bear India td., Vs. CCE, Noida [2009 (240) ELT 25 (Tri.- LB)] and argued that this case is squarely covered by the aforesaid judgments and orders and therefore, the Order-in-Appeal may be set aside and the demand, interest and penalty may also be set aside. 7. The Learned Departmental Representative, on the other hand, reiterated the arguments made in the Order-in-Original and Order-in-Appeal and said that since the permission is given by the Development Commissioner was on the condition of payment of all duties and do not envisage any exemption. Therefore, the clearances have to be on full payment of duties and there is no scope for permitting any exemption und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is required to be done before levying duty under Section 3(5) is the responsibility of the Central Government. The levy is on goods imported. The said levy is not assessee specific or area specific or State specific. We do not find that the levy is beyond the powers of the Central Government or in violation of any conditions or limitations prescribed under Section 3(5) of the CTA. (b) At any rate, the Tribunal cannot go into the legality of levy under Section 3(5) by issue of Notification. (c) In respect of clearances made from a 100% EOU, as the assessment is required to be done at the time of removal the Notification No. 20/2003-C.E., dated 31-3-2003 as amended by Notification No. 22/2006- C.E., dated 1-3-06 has to be applie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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