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TMI Blog2024 (10) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... e cleared at the concessional rate of duty if 100% EOU has already achieved positive NFE. It is found that appellant have fulfilled their export obligation and there is no allegation that NFE has not been achieved by the appellant of permissible export products and therefore, the provisions relating to clearance of its by-products in Domestic Tariff Area at the concessional rate of duty are undoubtedly available to the appellant, more so when NFE has been positive in case of the appellant - the appellant have rightfully availed the benefit of concessional rate of duty under Notification No. 23.2003-CE dated 31.03.2003 an clearances of its by products. Extended period of limitation - HELD THAT:- The appellant have been informing the department about the by-products which have been cleared by them availing concessional rate of duty under Notification No. 23/2003-CE dated 31.03.2003. It is found that element of fraud, mis-representation, suppression of facts with intention to evade duty are not present in this case and therefore, there are no legally sustainable to invoke extended time proviso under Section 11A of Central Excise Act, 1944 for demanding Central Excise duty. The first s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was not eligible to claim concessional rate of duty under the said notification. The department has issued three show cause notices for the period June 2009 to May 2014 and for the period June 2014 to April 2015 and third show cause notice for the period 2015 to December 2015. The first show cause notice has been issued under Section 11A of Central Excise Act, 1944 by invoking extended time proviso and other two show cause notices have been issued for the normal period of time. The Deputy General Manager, Shri AK Nayak has also been made party to the show cause notice for the purpose of levy of penalty under Rule 26 of Central Excise Rules, 2002. The matter has been adjudicated by the impugned orders-in-original dated 22.02.2017 and 27.03.2019 whereunder all the charges as alleged in the show cause notices have been confirmed by the impugned orders-in-original. The appellants have approached learned Commissioner (Appeals). The Commissioner (Appeals) vide impugned order-in-appeal dated 05.09.2017 and dated 27.08.2019 have not found it fit to grant any relief to the appellants therefore the appeals were rejected. The appellants are before us. 3. Learned advocate appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehemently argued that it was not open for the department to have held that by-product emerging during the process of manufacture of finished goods could not have been cleared in DTA at concessional rate of duty because the appellant had exported another chemical product though all these products were chemicals of the same group classified under the same Chapter of Central Excise Tariff as well as Customs Tariff and covered under LOP. It has further been added that Domestic Tariff Area sales made by the appellant of goods exported in accordance with the items permitted vide broad banded LoP and DTA sales were not in excess of 50% of quantities of the exports of the similar goods. The learned advocate has emphasized that goods exported in accordance with the items permitted vide broad banded LoP and impugned order denying benefit of Notification No. 23/2003-CE dated 31.03.2003 is legally wrong and Central Excise duty of differential amount cannot be demanded from the appellant. 3.3 It has further been continued that, it was wrong on the part of the Commissioner (Appeals) to hold that the goods exported by the appellant in accordance with the items permitted vide broad banded LoP we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) ELT 705 (Tri. Del.) as well as in the case of RK Ispat vs. CCE, Raipur 2007 (211) ELT 460 (Tri. Del.) 4. We have heard learned AR appearing for the Revenue who reiterated the findings as given in the impugned orders-in-appeal. 5. We have heard rival submissions and perused the record of the appeals. We find that office of the Development Commissioner, KASEZ has approved inclusion of by-products in the LoP vide its letter dated 29.04.2005 where in Ammonium Sulphate Liquor, Ammonium Carbonate Liquor and hazardous waste have been included. It is matter of record that appellant have been exporting their products Copper Phthalocyanine Blue Crude, Activated Crude and Beta Blue, Ammonium Sulphate, Ammonium Carbonate Liquor, Copper Sludge Waste Chemical Gypsum etc. which they were permitted to manufacture and export under 100% EOU manufacturing scheme. There is no denying to the fact that required export obligation has been fulfilled by the appellant with regard to their various products and they have been filing regular returns with regard to exports as well as the clearances which have been effected by them availing concessional rate of Central Excise duty as per provisions of Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pto 50% of FOB value of exports, subject to fulfillment of positive NFE, on payment of concessional duties. Within entitlement of DTA sale, unit may sell in DTA, its products similar to goods which are exported or expected to be exported from units. However, units which are manufacturing and exporting more than one product can sell any of these products into DTA, upto 90% of FOB value of export of the specific products, subject to the condition that total DTA sale does not exceed the overall entitlement of 50% of FOB value of exports for the unit, as stipulated above. No DTA sale at concessional duty shall be permissible in respect of motor cars, alcoholic liquors, books, tea (except instant tea), pepper pepper products, marble and such other items as may be notified from time to time. Such DTA sale shall also not be permissible to units engaged in activities of packaging / labeling / segregation / refrigeration / compacting / micronisation / pulverization / granulation / conversion of monohydrate form of chemical to anhydrous form or vice-versa. Sales made to a unit in SEZ shall also be taken into account for purpose of arriving at FOB value of export by EOU provided payment for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positive NFE. 5.2 We find that appellant have fulfilled their export obligation and there is no allegation that NFE has not been achieved by the appellant of permissible export products and therefore, we are of the view that the provisions relating to clearance of its by-products in Domestic Tariff Area at the concessional rate of duty are undoubtedly available to the appellant, more so when NFE has been positive in case of the appellant. While taking the above view, we rely on this Tribunal s decision in the case of DCM Hyundai Limited vs. CCE, Chennai 2023 (4) TMI 982- CESTAT Chennai, which reads as follows:- 12 . The very same issue was analyzed by the Tribunal in the case of Abi Turnamatics vs. Commissioner of GST CE (supra) as under: 5.4 The third ground for denial of notification benefit is that the goods cleared in DTA are not similar to the goods exported by the appellant. The adjudicating authority in para 11 of the impugned order has relied upon para 3 of Board Circular 7/2006-Cus., dated 13-1-2006 which has observed that there is no definition of similar goods . Hence to bring clarification and uniformity that the definition of similar goods would be based on the defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions. Both bearing housing and turbine wheel are surely component parts of turbo charger, a fact which has been admitted by the adjudicating authority in para 12 of the impugned order. If on the other hand, the permission granted by the Development Commissioner to the EOU was only for bearing housing, in that event, the clearance of turbine wheel which is a part distinct from bearing housing would have come under the scanner. But when the permission is generic and only states turbo charger components , the condition of the impugned notification gets satisfied so long as the parts that the exported and the parts cleared into DTA are both the components of turbine charger. 13. It can be seen that the open top containers exported by the appellant is similar to the tipper body used for transportation. It is not necessary that the goods cleared into DTA have to be identical to the goods exported by the EOU. Further, permission has been granted by the MEPZ to clear containers which are similar. We therefore find that the denial of the benefit of the notification is not justified. The impugned order demanding differential duty requires to be set aside which we hereby do. 5.3 In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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