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TMI Blog2022 (4) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of Notification no. 23/2003-CE dated 31.03.2003 for payment of duty at concessional rate. Appeal allowed - decided in favor of appellant. - EXCISE Appeal No. 219 of 2011 - Final Order No. 10293/2022 - Dated:- 24-3-2022 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Ankur Upadhyay, Advocate for the Appellant Shri R P Parekh, Authorised Representative for the Respondent ORDER The appellant is before the Tribunal against the demand of differential duty of excise from the appellant. 1.1 The fact of the case are that the appellant is a 100% EOU and have cleared paper waste after segregation process of waste imported during the period October, 2003 to January, 2005 on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is a manufacturing activity, therefore, this Tribunal held that clearance of paper waste in DTA after payment of Central Excise duty at concessional rate of duty is correct. He also relied on the decision of this Tribunal in the case of Hathaway Systems (India) Pvt. Ltd. 2016 (338) ELT 306 (Tri-Del.). He further submitted that the demand is barred by limitation as Show Cause Notice issued to them by invoking extended period of limitation whereas all the details were mentioned in the records already submitted and there is no suppression of facts by the appellants, therefore, the impugned order is to be set aside. 3. On the other hand, Learned Authorized Representative supported the impugned order and submitted that the issue has been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In other words, an unit engaged in segregation activity, which was set up prior to 1-4-2002 would be continued to be treated as manufacturing concern, as for the entire period original LOP, for the purpose of fulfilment of export obligation and grant of other benefits available under the Foreign Trade Policy and Customs and Central Excise laws. This circular has not been withdrawn by DGFT authorities. As is recorded by us earlier, it is undisputed that the appellant s unit was set up in 2001 for segregation of scrap from imported burnt transformer; considered activity as manufacture. If that be so and there being no dispute that the appellant had segregated the scrap and cleared from EOU will amount to an activity of manufacture. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under : Both the appellants are 100% EOUs. Being so, their clearances to Domestic Tariff Area (DTA) are liable to duty in terms of proviso to Section 3(1) of the Central Excise Act. The effect of this is that duty payable on the goods cleared by these units would be the aggregate customs duty leviable on similar goods when imported into India. 2. In the present cases, dispute has arisen as to what is the rate at which additional duty of customs (CVD) is to be levied on the goods cleared by the appellant s EOU to the Domestic Tariff Area. The appellants contended before the lower authorities that rate of duty applicable would be the effective rate of duty as fixed under exemption notification and not tariff rates of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty leviable under Section 3 of the Central Excise Act is to be calculated after giving effect to the exemption notifications. Therefore, goods produced in EOUs/EPZs cannot be charged to duty at Tariff rate. 3. Normally duty leviable would be read with notification for the time being in force. Even in absence of such words in the notification, the duty leviable would be effective rate of duty only. Even in Section 3 of the Customs Tariff Act, the words used are leviable for the time being in force. 5. It is clear from the above that the issue raised in the present appeals remains settled in favour of the appellants. Accordingly, the appeals are allowed with consequential relief, if any, to the appellants after setting aside the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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