9911796707
TMI Blog2004 (12) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. In Sam Spintex Ltd. v. CCE [ 2003 (10) TMI 138 - CESTAT, NEW DELHI] , it has been held that when there is a removal to DTA without permission of the Competent Authority, duty is leviable under main Section 3 of the CE Act, 1944 and not its proviso. While arriving at the above decision, the Hon'ble Tribunal relied on the decision in the case of CCE v. Pratap Singh [ 2002 (8) TMI 228 - CEGAT, NEW DELHI] which has been affirmed by the Apex Court vide its order [ 2002 (12) TMI 637 - SC ORDER] . Thus, even if the Commissioner's finding on the classification of Shrimp Seeds is upheld, the duty would be NIL. In that case, the classification issue becomes academic. However, after going through the HSN Explanatory Notes, we are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction of aquaculture products, which would be exported out of India. In case of DTA sale, as per the Policy, the permission of the Development Commissioner is necessary. The Revenue proceeded against the appellant on the following grounds. 3.They produced and sold 11,15,29,540 nos. of Shrimp Seeds and 48,365 kgs. of Shrimps during the period from 1994-95 to 1997-98 in the DTA without obtaining the permission of the Development Commissioner, without issuing proper invoice under Rule 100E and without paying Central Excise Duty. The Commissioner, invoking proviso to Section 11A of the CE Act, demanded a duty of Rs. 1,83,46,493/- on the Shrimp Seeds and Shrimps and Fish cleared by them. Interest @ 25% was demanded under Section 11AB w.e.f. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an consumption by reason of either their species or their condition (Chapter 5); flours, meals and pellets of fish or of crustaceans, mollusks or other aquatic invertebrates, unfit for human consumption (Chapter 23)." In view of the Chapter Note, Shrimp Seeds could be excluded from the purview of Chapter 3. In other words, the goods are not excisable. If they are not excisable, there is no question of payment of duty. Hence, the demand of duty on Shrimp Seeds cleared to DTA is not sustainable. (iv) There was no suppression of facts as alleged by the Commissioner. The activities of the appellant's unit were under full gaze of the department. There was no intention to evade any duty. Even the Range Superintendent, only on 5-7-1995, stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings in the OIO. 7.We have heard the rival contentions. The Commissioner, after classifying the Shrimp Seeds under Chapter 3, has worked out the amount equal to the aggregate of the Customs Duty leviable as per proviso to Section 3(1) of the CE Act, 1944 and demanded the same. It is on record that for clearing the Shrimp Seeds, no permission was taken from the Development Commissioner. When the goods are cleared with the permission of the Development Commissioner, then only proviso to Section 3(1) of the CE Act, would be applicable. In Sam Spintex Ltd. v. CCE, Indore - 2004 (163) E.L.T. 212 (Tri - Del), it has been held that when there is a removal to DTA without permission of the Competent Authority, duty is leviable under main Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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