9911796707
TMI Blog2004 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... the above two financial years. (b) that for the clearances to DRDO, Thermal Power Corporation and District Forest, Erode, the assessee was not eligible for exemption claimed under Notification No. 39/96-Cus., dated 23-7-1996 as the said Notification was applicable only to the goods imported into India and not to the goods manufactured in India. (c) that for the clearances to Public Funded Research Institutions like LEOS, Bangalore, BARC Mumbai etc., the assessee was not eligible for exemption claimed under Notification No. 51/96-Cus., dated 23-7-1996 as the said Notification was applicable only to the goods imported into India and not to the goods manufactured in India. The proceedings culminated in the order of adjudication passed by the Commissioner as aforesaid. 3. Shri R. Raghavan, learned Counsel appearing for the applicants submitted that the issue in the appeal relates to clearances made to DTA. He submitted that the appellants are a 100% EOU and they supply the goods to Defence Department and ISRO etc. They are eligible to the benefit of Notification No. 51/96-Cus., dated 23-7-96. They have also claimed exemption in terms of Notification No. 2/95-C.E., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal No. 6/2001, dated 25-7-2001 and inasmuch as that decision has not been appealed against, it has attained finality. Therefore, the present proceedings initiated by the Department is not sustainable. In support of his plea he has invited our attention to the judgment of the Hon'ble Apex Court in the case of CCE, Calcutta v. Suntrack Electronics (P) Ltd. reported in 2003 (156) E.L.T. 163 wherein the Hon'ble Supreme Court has held that when similar earlier order has not been appealed against by the Revenue and Tribunal has relied upon its earlier order which the Revenue has not chosen to challenge, present appeal cannot be entertained. He has also invited our attention to the judgment of the Hon'ble Apex Court in the case of CCE, Pune v. Tata Engineering and Locomotives Co. Ltd. reported in 2003 (158) E.L.T. 130 (S.C.) = 2003 (59) RLT 237 (S.C.) wherein also similar view was taken by the Hon'ble Supreme Court. He therefore, submitted that the department was bound by their earlier decision as in Order No. 6/2001, dated 25-7-2001 of the CCE, Trichy. He submitted that in view of above, the appellants have made out a strong prima facie in their favour, and therefore, prayed for waiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso clarified by Bombay-III Commissionerate Trade Notice No. 4/CUS/94, dated 14-11-1994. It is only in the above circumstances, the appellants have contended that they are eligible for Exemption under CN No. 51/96. Further, it is clarified in MF CA (DR) Circular No. 27/2003-Cus., dated 2-4-2003. [2003 (153) E.L.T. T 52/53] that if delivery of goods is to those institutions as in CN 51/96-Cus., the exemption has to be extended even while the importer may not be the Institution referred to in the said Notification. (g) It is to be noted that if other manufacturers who are outside EOU are to clear subject goods to Public Funded Research Institutions, CEN 10/97-C.E., dated 1-3-1997 provides nil rate of duty. Therefore, there is no undue advantage to EOUs if benefit of CN 51/96-Cus., is claimed for clearance to Public Funded Research Institutions in DTA. (h) In view of the above, when supplies to Public Funded Research Institutions are not in dispute and further such supplies are covered by CN 51/96-Cus., the same is exempt from payment of duty as CN 51/96-Cus. exempts such goods from the whole of duty of customs leviable therein including the ADC. (C.V.D.) (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are passed even if wrong orders were earlier passed in favour of some other persons. He further submitted that Notification No. 51/96-Cus., clearly prescribes that the benefit is admissible to Public Funded Research Institutions or a University or a IIT or IIS, Bangalore or Regional Engineering College other than a Hospital. Appellants are not covered by any one of the above prescriptions. He submitted that the appellants are a profit making unit and they have made a profit of Rs. 128.56 lakhs after tax for the year ended 31-3-03. They have not made out a prima facie case in their favour and hence they should be put to terms, argued the learned JCDR. 4.1 On behalf of the learned JCDR, the learned SDR Smt. Bhagyadevi also submitted a written submission in the court on 26-12-2003, wherein inter alia it is stated as under : (a) The Larger Bench in the case of M/s Himalya International Ltd. v. CCE reported in 2003 (154) E.L.T. 580 has held that all the clearances made by an 100% EOU with permission or without permission of the Development Commissioner will have to pay duty under the proviso to Section 3(1) of CEA. The Apex Court in the case of Pradeep Chandra Parija repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Optics Systems, is a Public Funded Research Institution and that they have placed an order No. LPCO451R1L, dated 5-7-2001 on the appellants for supply of alignment cubes and that the goods covered by the said order are required for Research purposes only. Prima facie the appellants cannot be denied the benefit of Notification No. 51/96-Cus., dated 23-7-1996, in view of the Clarifications issued by Ministry of Finance vide Circular No. 27/2003-Cus. wherein it is clarified that "Harmonious construction of the provisions of the Notification leads to the clear interpretation that benefit of concessional rate of duty under the said Notification has to be allowed even in those cases where imports are made by importers other than the Institutions specified in Column (2) against Sr. No. 1 of the table, provided such imports are made for delivery to an institution specified in the Notification". Further, in terms of the Trade Notice issued by Bombay-III Commissionerate vide Trade Notice No. 4/CUS/94, dated 14-11-1994, the clearances from Export Oriented Unit (EOU)/Export Processing Zone (EPZ) units to the Domestic Tariff Area (DTA) are placed on par with "imports" and it is for this reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce in the submissions made by the appellants in this regard as the principle of res judicata prima facie applies. 6. Now coming to the plea taken by the Revenue that in terms of the first proviso to Section 3(1) of the C.E. Act, 1944, the appellants have to discharge duty liability at the tariff rate. No doubt, appellants being 100% EOU their clearance to DTA are liable to duty in terms of proviso to Section 3(1) of the C.E. Act and this is the plea taken by the appellants also. But the effect of this is that duty payable on the goods cleared by such 100% EOU would be the aggregate of customs duty leviable on similar goods when imported into India and since in terms of the second proviso to Notification No. 2/95-C.E., if the goods are chargeable to nil rate of duty under Section 12 of the Customs Act, 1962, the first proviso to Notification No. 2/95-C.E. is not applicable in case of the goods cleared by 100% EOU to DTA. The first and the second proviso to the said Notification are extracted hereunder for convenience of reference. "Provided that the amount of duty payable in accordance with this Notification in respect of the said goods shall not be less than the duty of excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
