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TMI Blog2023 (12) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... imported are either cleared as such into DTA or used in the manufacture of any goods that are cleared into the DTA. The goods having been destroyed in fire, there is no occasion of the goods cleared as such into DTA or used in the manufacture of finished products for clearance into DTA - The department has relied upon Notification No.5/1994 CUS dated 18.11.1994. The said notification also states that only if the goods are cleared as such into DTA or used for manufacture of finished products and are cleared into DTA, the exemption of the notification would become ineligible. The goods imported were destroyed in fire and therefore, there is no requirement to look into the fulfilment of the conditions of Notification No.52/2003 dated 31.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.3. The appellant was issued Show Cause Notice dated 08.11.2011, proposing to reject the refund claim. After due process of law, the Original authority rejected the refund claim of Rs.8,55,993/-, being the anti-dumping duty. The Original authority also rejected the claim of Rs.2,23,775/- paid towards customs duty and interest of Rs.12,832/-, as being time barred. The appellant preferred an appeal before the Commissioner (Appeals) who upheld the same. Hence this appeal. 2. The Learned Counsel, Shri. M.Karthikeyan appeared and argued for the appellant. 2.1 It is submitted that there was a fire accident in their 100% EOU on 09.07.2010 and in the said accident, 24,250 Kilograms of Ammonium Persulphate, which was imported without payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. 3.1 The contention of the appellant is that as per Section 9A of the Customs Tariff Act, the levy of anti-dumping duty is not applicable for the imports made by an export oriented unit (EOU). Therefore, they are not eligible for the benefit of notification No.52/2003 CUS, in respect of the materials destroyed in the fire accident. 3.2 The appellant is not eligible for the claim as per the Notification No.52/2003, for the reason that the inputs were not used in the manufacture of final products. So also the inputs were not cleared as such into DTA, on payment of duty by the appellant. 3.3 Having not fulfilled the conditions as per the Notification No.52/2003 CUS, the appellant is not eligible for exemption from anti-dumpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not satisfy the conditions stipulated under Notification No.52/2003 CUS dated 31.03.2003. 5.2 The Learned Counsel has adverted to Section 9A (2A) of Customs Tariff Act, 1975 which reads as under: Prior to 28.03.2021 [(2A) Notwithstanding anything contained in sub-section (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under sub-section (2), shall not apply to articles imported by a hundred percent, export-oriented undertaking unless,: - (i) specifically made applicable in such notifications or such impositions, as the case may be; or (ii) the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression special economic zone shall have the same meaning as assigned to it in clause (za) of section 2 of the Special Economic Zones Act, 2005 (28 of 2005.)] 5.3 The above provision of law as it stood prior to 28.03.2021, as well as after the said date, provides that the anti-dumping duty shall not apply to articles imported by 100% EOU or a unit in a Special Economic Zone, unless it is specifically made applicable in the notification. 5.4 In the present case, Notification No.96/2007 CUS dated 29.08.2007, which imposes the levy of anti-dumping duty on the goods does not make any mention that it is specifically made applicable to EOU/SEZ. The second condition is that the goods imported are either cleared as such into DTA or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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