Customs, Excise and Gold Tribunal - Bangalore
Sarita Software And Ind. Ltd. vs Cce on 5 October, 2004
Equivalent citations: 2004(117)ECR1107(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Original No. 60-61/2002-RP dated 21.10.2002 by which the Commissioner has confirmed the demand on the ground that the appellants are required to pay Additional Excise Duty when they have cleared the goods in the DTA under Para 9.9 (a) & (b) of the Export and Import Policy 1997-2002 and having cleared the goods on payment of Central Excise duty and Notification No. 8/97-CE dated 1.3.1997.
2. Ld. Counsel appearing for the appellants submits that the issue is no longer res-integra as the matter on the same issue has already been successfully agitated before the Hon'ble Apex Court in case of Nahar Industrial Enterprises Ltd. v. Union of India . It was the plea of the assessee that the Additional Duty of Excise was not leviable on the final products cleared by them in terms of the exemption granted to 100% E.O.U. from payment of Additional Excise Duty by Notification No. 55/91-CE dated 25.7.1991. He also pointed out that the judgment of the Hon'ble High Court of Punjab & Haryana in case of Vardhman Polytex Ltd. 2001 (135) ELT 17 (P&H) has been over ruled including the Tribunal decisions and . He prays to set aside the impugned order and to allow the appeal with consequential relief.
3. Heard Ld. SDR appearing for the Revenue who re-iterated the ground taken by the Commissioner in the impugned order.
4. On a careful consideration of the matter, we find that the short question required to be decided in this appeal is as to whether the appellants are required to pay Additional Duty of Excise when they cleared the goods of the 100% E.O.U. There was a specific Notification No. 55/91-CE granting exemption to 100% E.O.U. from payment of Additional Duty of Excise. The Hon'ble Apex Court has held that in view of this Notification, the question of raising demand on 100% E.O.U. for Additional Duty of Excise does not arise. The relevant Para 11 of the Apex Court judgment which is reproduced below-
11. That does not in any way create a liability on the 100% E.O.Us to pay AED. Notification No. 55/91-CE dated 25.7.1991 is in no way diluted so far as the manufacturers like the appellants are concerned, notwithstanding what has been provided in Notification No. 8/97-CE dated 1.3.1997 as amended by Notification No. 11/2000-CE dated 1.3.2000. As stated above, the only change is that under Notification 8/97-CE, dated 1.3.1997 the 100% EOUs were exempt from paying duty in excess of amount of BED paid by the producer or manufacturer who is not 100% EOU, whilst after amendment by Notification 11/2000-CE, dated 1.3.2000 the 100% EOU is exempt from paying duty in excess under any other law for the time being in force, paid by the producer or manufacturer who is not 100% EOU. Thus, the view expressed in the Circular dated 19.12.2000 and view of the High Court are indefensible. The Circular afore-noted is, therefore, quashed.
Respectfully following the ratio of the afore stated judgment of the Hon'ble Apex Court, we set aside the impugned order and allow the appeal with consequential relief, if any.
(Pronounced and dictated in the open court.)