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TMI Blog2024 (2) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... y and CVD - SCN purportedly issued under Section 11A (5) of the Central Excise Act 1944 is without jurisdiction since the said Section 11A (5) stood omitted with effect from 14-5-2015 or not - whether Notice is barred by time and the larger period of limitation apply since the goods were cleared after verification of duty payment and issue of No dues certificate by the central excise officer? HELD THAT:- It would be evident from the calculation that the Principal Commissioner has wrongly calculated the Basic customs duty on the MRP of the goods, which is contrary to the provisions of Proviso to Section 3 (1) of the Central Excise Tariff Act. As per Proviso to said Section 3 (1), Excise duty on goods manufactured by a 100% EOU and brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -05-2015. The show cause notice having been issued under a non-existing provision is not maintainable in law. Further the said Section 11A (5) read with Section 11A (4) is applicable in cases of fraud, collusion, willful mis-statement, suppression of facts or contravention with intent to evade, none of which is present in this case. As evident from letter dated 22-5-2012 of the Superintendent, prior to de-bonding, the factory was visited by the Central Excise officers and the stock and calculation of duty were duly verified by the Central Excise officers. It is evident from the letter that the department was fully aware of availing of notification No.23/2003-CE. Therefore, the larger period of limitation is inapplicable in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14-5-2012, paid Central Excise duty amounting to Rs.71,78,092/-. No dues Certificate was also issued to the 100% EOU on 25-6-2012. 2.4 Subsequent to the De-bonding and exit from EOU, Show Cause Notice dated 27-5-2015 was issued to the Appellant based on audit objection, wherein it was contended that the 100% EOU had wrongly claimed the benefit of Notification no. 23/2003-CE dated 31-3-2003 while calculating the duty payable on the finished goods in stock at the time of De-bonding. It was contended that the said Notification applies only to goods cleared in DTA pursuant to DTA sales entitlement under Para 6.8 of the Foreign Trade Policy and the same does not apply to the finished goods cleared at the time of De-bonding. The Show Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing on behalf of Appellant, submits that the calculation of the Duty done by the Principal Commissioner is at page 55 of the Appeal from which the following are evident: (a) Basic customs duty has been wrongly calculated on the MRP which is contrary to Proviso to Section 3(1) of the Central Excise Act 1944, which requires the basic customs duty to be calculated on value as per the Customs Act 1962, (b) CVD has been wrongly calculated on the MRP instead of MRP less abatement, (c) Education Cess and Secondary and Higher Secondary Education Cess are wrongly taken again on the aggregate of customs duties once again although the same were already considered while calculating the aggregate of customs duties. Instead of taking s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purportedly issued under Section 11A (5) of the Central Excise Act 1944 was not maintainable in law since the said Section 11A (5) stood omitted with effect from 14-5-2015. 4. Shri Ajay Kumar Samota, learned Superintendent (AR) appearing for the Revenue relied upon the findings given in the impugned order. 5. We have carefully considered the submissions made by both the sides and perused the records. The following issues arise for consideration in the present Appeals: a) Whether the Commissioner is right in taking the local Maximum Retail Price (MRP) for calculating the aggregate of Customs duties (Basic, CVD, SAD, Cess) to arrive at the Excise duty payable by 100% EOU under the Proviso to Section 3(1) of the Central Excise Act 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue which is mentioned in the Column before the Column of MRP on page 55 of the Appeal, the Principal Commissioner has taken the MRP, which is plainly erroneous. Accordingly, the assessable value taken for calculating the Basic Duty is ex-facie erroneous. 5.2 As regards the CVD, the Principal Commissioner has wrongly calculated the same on MRP instead of MRP less abatement under Notification No. 49/2008-CE (NT) dated 24-12-2008. Accordingly, the value taken for calculation of CVD is also ex-facie erroneous. 5.3 Further, the Principal Commissioner has wrongly taken Education Cess and Secondary and Higher Secondary Education Cess once again on the aggregate of customs duties, although the same were already considered while calculating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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