Customs, Excise and Gold Tribunal - Bangalore
Sai Lakshmi Industries Ltd. vs Commissioner Of Customs on 22 March, 2004
ORDER S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 22/01-Cus Dated : 18.10.01. The issue in the appeal pertains to confirmation of demand of AED of Rs. 6,61,345/- on the clearances made during the period from 1.3.2000 to 16.11.2000. The appellants are 100% EOU Unit. They had disposed off few of their imported goods manufactured by them in the DTA area without paying AED, which they are not exempted under the Notification. The Commissioner in the impugned Order has noted that Notification No. 8/97-CE Dated. 1.3.97 does not exempt from AED after the amendment to the Notification from 1.3.2000.
2. Ld. Counsel fairly submits that the issue in question has been gone into by the Tribunal in the case of Parasrampuria International Vs. CCE, Indore (2002 (52) RLT 545) including the Circulars Dated 19.10.2000 issued by the CBEC. This citation was further relied in the case of Ginni International Vs. CCE, Jaipur [2003 (59) RLT 635 (CESTAT-Del.)]. He submits that although the citation is against him, but yet would like to reiterate the grounds urged by him before the Commissioner in the matter.
3. Ld. SDR submits that the issue is no longer res-integra and the matter has been decided in the citations referred to by the Counsel. He submits that there are no further grounds required for consideration and therefore in terms of the judgment rendered in case of Ginni International Vs. CCE, the appeal is required to be rejected.
4. We have carefully considered the submissions. We noted that the facts in the present case is identical to the one decided by Delhi Bench in case of Ginni International Vs. CCE, we are not in a position to take up the grounds raised by the appellants as the issue is covered against them. The findings recorded by the Tribunal in case of Ginni International Vs. CCE is reproduced here below:
"In this appeal which has been filed by the appellants, the issue relates to the availability of the benefit of the Notifications No. 8/97 Dated 1.3.97 and 55/91-CE to the appellants. The adjudicating authority, however, allowed the benefit of these Notifications to the appellants in respect of the clearances made by them in DTA, although they are 100% EOU. The Ld. Commissioner (Appeals) has reversed that order through the impugned order-in-appeal, by holding that benefit of these Notifications is not available in respect of the clearances made by the appellants as a 100% EOU in DTA. This view of the Ld. Commissioner (Appeals) finds corroboration from the ratio of law laid down by the Tribunal in M/s Parasrampuria International Vs. CCE, Indore (2002 (52) RLT 545), wherein it has been clearly observed that the benefit of the above said Notifications to the 100% EOU is not available in respect of the DTA clearances. Therefore, we do not find any illegality in the impugned order passed by the Commissioner (Appeals). We affirm the order.
2. However, the Ld. Counsel has prayed for setting aside the penalty of Rs. 15,000/- confirmed against the appellants through the impugned order of the Commissioner (Appeals) on the ground that the adjudicating authority decided the issue in favour of the appellants and earlier the Board's Circular was also in favour of the appellants allowing the benefit of the Notification in question, but it is only later on through another Board's Circular dated 19.10.2000 (reported in 2000 (41) RLT M21), the position became clear that the benefit of the notifications was not available to the 100% EOU for the DTA clearances. According to the Ld. Counsel, there was no malafide intention on the part of the appellants to evade duty. On the other hand, the Ld. JDR has contested this prayer of the Counsel, by contending that the earlier Board's Circular did not help the appellants in clearing the goods in DTA and as such, they are liable to pay the penalty also.
3. We have gone through the record. We find that earlier there was doubt about the liability of the 100% EOU to pay the duty on the DTA clearances and there was also Board's Circular earlier which created this doubt in the minds of the appellants. The appellants have already paid the entire duty and this is enough to indicate that they had no malafide intention, when they were denied the benefit of the Notifications in question referred to above, they deposited the amount. Keeping in view facts, circumstances and the conduct of the appellants, we find it a fit case to set aside the penalty. Therefore, the penalty imposed on the appellants under Rule 209A is set aside. Except for this modification in the penalty, the impugned order of the Commissioner (Appeals) on merits is upheld. The Appeal of the appellants stands disposed of accordingly."
5. Respectfully following the ratio of the above noted judgment, the impugned order is confirmed and the appeal is rejected.