- (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the Department reversing the view taken by CIT (A) (Annex.2) dated 26.5.2005.
(2.) This Court while admitting the appeal, framed the following substantial question of law: "Whether in the facts and circumstances of the case the CESTAT being the last fact finding body was justified in drawing conclusion that appellant has taken no permission to sell the goods in DTA, when there was no need of permission as per EXIM Policy para 9.9 for the period 1997-2002 ?
(3.) The facts of the case are that the appellant company is by status a 100% EOU unit licenced u/s 58 and 69 of the Customs Act, 1962 and is engaged in manufacturing of halogen lamps classifiable under Chapter Heading No. 8539.90 of the Central Excise Tariff Act, 1985. The appellant was granted letter of permission/ intent by the Development Commissioner, New Export Process Zone (NEPZ), Noida for granting 100% EOU status in lieu of fulfilling export obligations. Further with a condition to abide by the provisions of EXIM Policy from time to time. The appellant company is importing and purchasing inputs/ raw material from the indigenous market as well as for the manufacture of auto halogen lamps which are cleared for export as well as in the domestic tariff area (DTA) as per the norms given in letter of intent, EXIM Policy and notification No.2/95 (CE). On 24.2.99, on physical verification and comparison of goods with the stock register by Anti-Evasion Wing of Central Excise, a shortage of 13885 number of auto halogen bulbs and shortage of 9684 rejected bulbs was found. Apart from short payment of duty paid on waste and scrap which amounted to duty to the tune of Rs. 286447/-, 38241/- and 28546/- respectively. Pursuant to search, a show cause notice dated 22.6.2001 was issued after recording statements u/s 14 of the Central Excise Act, wherein it was admitted that appellant has deposited the disputed amount voluntarily prior to issuance of show cause notice, but still demand u/s 11A and penalty u/s 11AC were demanded.;