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TMI Blog2005 (5) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1975 leviable on such goods and not exempt under Notification 82/92-C.E. was alleged to be evaded. The same was determined and confirmed by the orders of the Commissioner under provision of Section 11A along with interest as demanded by : (i) SCN dt. 4-8-2000 for period of clearance 7/99 to 9/99 (ii) (iii) SCN dt. 3-1-2001 SCN dt. 17-1-2001 for period 12/99. for period 1/2000 to 2/2000 corrigendum dt. 30-3-2001 (iv) SCN dt. 26-2-2001 for period 3/2000 corrigendum dt. 30-3-2001 (v) SCN dt. 2-5-2001 for period 4/2000. a sixth notice was issued on 30-5-2001 by the Commissioner invoking Section 11AC, 11AB confiscation and charges on the Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Lipy Lisy Pharmaceuticals P. Ltd. [2004 (171) E.L.T. 118 (Tri - Del.)] have held- "4 ……Procurement from Domestic market under Advance Release Order may be from EOU/canalizing agencies/domestic manufacturer/EP2 etc. But terms of receipt of the materials from domestic suppliers have to be the same as terms of import (exempt from payment of both basic and additional Customs duty) as domestic procurement is a substitute for import….". therefore held that the provisions of Notifications 30/97 82/92 should be read harmoniously and supplies against Advance Release Orders issued under para 7.4 of Export Import Policy should be treated as eligible for exemption from Additional duty of Customs also. The same view ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the findings of applicability of Notification 125/84 benefit as determined by the ld. Bench. Nothing contrary shown, therefore following the same, interpretation we would uphold the duty free clearance effected in this case and find no reason to order recovery of any duty. 2.5 The reliance of ld. Jt. CDR on the case of Virlon Textile Mills [2002 (139) E.L.T. 371] will not help the Revenues case since that decisions is on the issue whether supplies of deemed export could be placed at a higher level than Exports and has not considered clearance on ARO's and application of the exemption under Notification 125/84 to such supplies. The reference of the order of the Larger Bench in case of Himalaya International [2003 (154) E.L.T. 580] t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r set aside had held the rate of duty applicable to clearance of goods from E.O.U. to DTA is the rate in terms of proviso to Section 3(1) of Central Excise Act, 1944 and not the rate under Section 3(1) ibid, whether goods cleared with the permission or without the permission of the Development Commissioner. The underlined emphasized direction of the Apex Court 'for consideration not only the rate but also' in light of the fact of reliance of the impugned order on the rate as held by the Larger Bench in para - 7. '…..we hold that the rate as per the proviso to Section 3(1) would be applicable for assessing all excisable goods which were cleared by 100% E.O.U. to DTA whether in terms of permission granted or in excess of the permission gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not 'allowed to he sold' the term as interpreted by the Supreme Court. Therefore such supplies not counting towards the 25% DTA quota and reading of provision of policy paras 9.9, 9.10 chapter Appendix 42 of the Exim Policy, all removals from an EOU cannot be termed as "allowed to be sold in DTA in India". Clearances under para 9.9 of the policy 9.10 of the Policy cannot be equated. It is settled law, that provisions of one para of policy cannot be read into or applied for the policy in another para. Supplies affected under para 9.10 are to be counted towards "Export Efforts" of the EOU and NFEP determinations. This "Export Effort" quantum will be thereafter reckoned to determine the 25% sale 'allowed in India'. The provision providin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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