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TMI Blog2020 (9) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... . on Rs. 65,53,984/-. iii. I impose a penalty of Rs. 65,53,984/- + an amount to the extent of interest payable as determined under (ii) above, on M/s. Eurotex Industries and Exports Ltd., under Section 114A of the Customs Act, 1962. Further I give an option to pay 25% penalty provided if they pay entire amount of above confirmed demand, appropriate interest thereon and penalty within 30 (thirty) days from the date of receipt of this order." 2.1 Appellant is an 100% Export Oriented Unit (EOU), engaged in manufacture and clearance for export of Cotton Yarn, as per the extant Export Import Policy, at the relevant time, after availing the admissible exemption notifications issued under the Customs Act, 1962 and Central Excise Act, 1944 2.2 Appellants procured the raw material and consumables used for manufacture of their finished goods without payment of duty, by availing the exemption as per notification no. 1/95-CE dated 4th January 1995 and no. 22/03-CE dated 31st March 2003 pertaining to domestic procurement of raw materials and consumables and notification no. 53/97-Cus dated 3rd June 1997 and no. 52/03-Cus dated 31st March 2003 pertaining to imported raw materials and consumab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT in case of Technocraft Industries; * Technocraft Industries decision needs to be reconsidered in view of the decision of Hon'ble Apex Court in case of Dhiren Chemicals [2002 (139) ELT 3 (SC)] and Dilip Kumar and Company [2018 (9) SC 1]; * So the matter be referred to the President for constitution of larger bench for reconsideration of the issues decided by the bench in case of Technocraft Industries in light of decisions referred above. 4.1 We have considered the impugned order along with submissions made in appeal and during the course of hearing on appeal. 4.2 Undisputedly Appellant is an Export Oriented Unit, established as per procedure prescribed for setting up of such units as per Export Import Policy (EXIM Policy). They procure without payment of duty, raw materials and consumables (collectively called inputs) as per the exemptions notifications issued by the Government under Customs Act, 1962 or Central Excise Act, 1944 as the case may be. They manufacture and clear cotton yarn either for export or in DTA in the manner as prescribed by the EXIM Policy. After obtaining necessary permissions from the Development Commissioner they clear cotton waste on payment of nil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... central excise even though the rate and the value applicable are derived from the provisions of Customs Act, 1962 and the Customs Tariff Act, 1975. There is no dispute that the impugned goods are a waste product and have been subject to the process of assessment as decreed by law. There is also no dispute that the impugned goods have materially altered from the raw materials utilised for manufacture and were not the duty free goods removed as such. The only issue that arises is the discharge of duty liability and the dispute is limited to the non-payment of duty arising from non dutiability. It is clear from the decision of Aarti Industries Ltd that 'cotton waste', even though subject to nil rate of duty, is considered to be excisable. In Winsome Yarns Ltd v. Commissioner of Central Excise, Chandigarh [2001 (127) ELT 833 (Tri-Del)] the Tribunal was concerned with an identical dispute and it was held that '4. We have considered the submissions of both the sides. The 100% E.O.Us. are provided facilities, among other things, of importing capital goods, raw-material, components etc. without payment of customs duty and also of obtaining similar goods from domestic market without payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to goods improperly removed from the warehouse and such provisions will be attracted only in respect of goods, which have been bonded. In this case, the bonded goods namely, the raw materials were not found cleared unauthorisedly or in contravention of the Customs Act. On the other hand, we find that the raw materials were admittedly issued for manufacture and a portion of the finished goods have been held to be rejects and waste and they were cleared in the domestic market as per the permission granted by the Development Commissioner. Under these circumstances, no case of diversion or use of the raw materials procured duty free for a purpose other than intended purpose, has been made out. Therefore, no valid grounds have been adduced to interfere with the findings of the Commissioner in so far as non-demand of duty on the raw materials and not taking the consequential penal action." In the decision of the Constitution Bench of the Hon'ble Supreme Court in re Dhiren Chemical Industries, reference arose in view of the conflict between the decisions in Collector v. Usha Martin Industries [1997 (7) SCC 47] and Motiram Tolaram v. Union of India [1999 (6) SCC 375] on the duty l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not apply to the present instance where the dispute pertains to an offshoot of the process of production of approved goods that were manufactured. Despite being a waste, it suffers duty only because it emerges through a manufacturing process and finds a place in the Tariff. The scheme of 'export oriented unit' is intended to provide special facilities to units that are engaged in export and even in the matter of clearance of domestic tariff area are subject to higher duties than a corresponding domestic unit is. The policy prescription also includes a ceiling on the quantity of goods that may be sold in the domestic market. A unit operating outside the scheme is subject only to the duties of excise on their finished products and there is no limit on the clearance that may be effected from the factory. The scheme of conditions in the exemption notifications under the Central Excise Act, 1944 and Customs Act, 1962 are intended to ensure that a unit operating under the scheme does not derive any unintended advantage vis-à-vis a unit operating outside by utilisation of exempted raw material and consumables. It cannot have been the conception behind the scheme to subject th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 4.6 In case of Dhiren Chemicals [2002 (139) ELT 3 (SC)], a five member bench of Hon'ble Supreme Court held as follows: "In the case of Motiram Tolaram, reliance was placed upon the case of Usha Martin to contend that the appropriate duty being nil, because the raw material was not manufactured in India, it must be taken that appropriate duty had been paid and the appellants would be entitled to the benefit of the Exemption Notification in question, which used the said phrase. The Court was unable to agree. It said that the raw material being an item which was manufactured in India, a rate of excise duty was leviable thereon. On the raw material which had been imported, the appropriate amount of duty had not been paid. It was only if this payment had been made that the exemption notification would be applicable. In our view, the correct interpretation of the said phrase has not been placed in the judgment in the case of Usha Martin. The stress on the word "appropriate" has been mislaid. All that the word "appropriate" in the context means is the correct or the specified rate of excise duty. An exemption notification that uses the said phrase applies to goods which have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the law laid down by this Court. However, it was pointed out that during hearing of Dhiren Chemical's case because of circulars of the Board in many cases the Department had granted benefits of exemption Notifications. It was submitted that on the interpretation now given by this Court in Dhiren Chemical's case, the Revenue was likely to reopen cases. Thus Para 9 was incorporated to ensure that cases where benefits of exemption Notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where Revenue/Department had already contended that the benefit of an exemption Notification was not available, and the matter was sub-judice before a Court or a Tribunal, the Court or Tribunal would also give effect to circulars of the Board in preference to a decision of the Constitution Bench of this Court. Where as a result of dispute the matter is sub-judice a Court/Tribunal is, after Dhiren Chemical's case, bound to interpret as set out in that judgment. To hold otherwise and to interpret in the manner suggested would mean that Courts/Tribunals have to ignore a jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been expressed by Kalyani's case (supra) as noted in the reference order." 4.9 The decision of Apex Court in case of Dhiren Chemical Industries, has been followed by the Mumbai Bench of CESTAT, in case of Garware Marine Industries [Final Order dated 04.09.2013 in appeal No E/3312/2004] held as follows: "2. The appellant M/s Garware Marine Industries Ltd., Ahmednagar are manufacturers of Nylon Fishing Nets. The raw material for such Fish net is nylon yarn. The nylon yarn is first converted into the nylon twine and the twine is used for the manufacture of fishing nets. Vide Notification No. 6/2002-CE dated 1.3.2002, all goods made from yarn, monofilament, tapes or strips on which the appropriate duty of excise leviable under the First Schedule, the special duty of excise leviable under the Second Schedule or, as the case may be, the additional duty leviable under the Customs Tariff Act, 1975 has already been paid, was exempted from duty. In the present case, since nylon twine is manufactured from nylon yarn, which is exempted from duty, the exigibility of nylon twine arose. The Hon'ble Apex Court in the case of Commissioner of Central Excise, Vadodara Vs. Dhiren Chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of VVF and Others [Order dated 22.04.2020 in Civil Appeal Nos. 2256-2263 of 2020 (Arising out of S.L.P.(C) Nos. 28194-28201/2010)], a three member bench of Hon'ble Supreme Court held as follows: "13.5. In the case of R. K. Garg v. Union of India (1981) 4 SCC 675, this Court observed and held as follows: "8. xxx xxx xxx The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry"; "that exact wisdom and nice adaption of remedy are not always possible" and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra, relied upon by the counsels for Appellant. In view of the decision of Hon'ble Apex Court in case of Sant Lal Gupta & Ors. [2010 (262) E.L.T. 6 (S.C.)] and Hon'ble Bombay High Court in case of Mercedes Benz India (P) Ltd. v. UOI, [2010 (252) E.L.T. 168 (Bom.)] the matter needs to be referred to the President for constitution of a larger Bench for consideration of the issue. 5.1 In view of discussions as above the matter is referred to Learned President, for being placed before Larger Bench of Tribunal the following questions for consideration: a. Whether the term "appropriate rate of duty" used in the exemption notifications 1/95-CE dated 4th January 1995 and no. 22/03-CE dated 31st March 2003 pertaining to domestic procurement of raw materials and consumables and notification no. 53/97-Cus dated 3rd June 1997 and no. 52/03-Cus dated 31st March 2003, will cover the case where the finished goods are cleared on payment of duty at nil rate? b. Whether the CESTAT Mumbai in case of Technocraft Industries, was correct in holding that the benefit of these exemption notifications shall be admissible even when the finished goods are cleared on payment of duty at 'nil' rate? (Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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