RAKESH KUMAR,MEMBER (T) -
(1.)The facts leading to filing of these appeals are, in brief, as under.
1.1 The appellant are a 100% EOU engaged in manufacture of an automobile part named Anti Noise Shims chargeable to Central Excise duty under heading 8708. The raw material for this auto component is HR Coils. In course of manufacture of Anti Noise Shims from HR Coils, Steel waste arises, the entire quantity of which was being cleared into DTA. The period of dispute in this case is from 01/3/08 to 31/7/10 and 01/8/10 to 31/3/11. There is no dispute that during this period, the scrap was cleared into DTA and the appellant company were paying full duty under proviso to Sec. 3(1) of Central Excise Act, 1944 without availing the concessional rate of duty under Notification No. 23/03 -CE. The duty being paid by the appellant on the DTA clearances was the Basic Customs Duty at nil rate under exemption Notification No. 21/02 -CUS (Sl. No. 200) (in terms of which melting scrap is fully and unconditionally exempt from duty) plus additional customs duty equal to the Central excise duty leviable plus Special Additional Customs Duty (SAD) at nil rate plus Education Cess and Secondary and Higher Education Cess (S & H Cess).
1.2 There are three objections of the Department.
1.2.1 The first objection is that since the clearances were not being made in terms of para 6.8 (e) of the Foreign Trade Policy (FTP) 2004 -2009, in as much as neither any standard input output norms in respect of scrap had been fixed nor the ad hoc norms had been fixed by the Development Commissioner nor other conditions of para 6.8 (e) relating to clearance of waste and scrap by a 100% EOU into DTA have been satisfied, the nil rate of basic customs duty under Notification No. 21/02 -Cus would not be available. The Department is also of the view that the scrap cleared into DTA is not melting scrap as the same has been sold to dealers not to actual users, while Notification No. 21/02 -CUS is applicable only to melting scrap.
1.2.2 The second objection of the Department is about method of calculation of education cess and secondary and higher education cess (S&H Cess) whether the same at the total rate of 3% (2% + 1%) of the Central Excise Duty chargeable would be leviable on the aggregate of the duties of Customs which includes education cess and S&H Cess. The Department was of the view that the cess would be leviable third time on the aggregate of the duties of customs i.e. 1st time at 2% + 1% on Additional Customs duty charged on CIF value plus basic customs duty, 2nd time at the rate of 2% + 1% on aggregate of basic customs duty plus Additional Customs duty and 3rd time at the rate of 2% + 1% on the aggregate of duties of customs + 3% of the aggregate.
1.2.3 The third point of dispute is regarding exemption to Special Additional Customs Duty (SAD). There is no dispute that the appellant in respect of their DTA sales have paid Value Added Tax/Sales Tax. In terms of Notification No. 23/03 -CE, the goods cleared into DTA are exempt from Central Excise duty equivalent to Special Additional Customs Duty leviable under Sec. 3(5) of the Customs Tariff Act, 1975 read with proviso to Sec. 3(1) of the Central Excise Act, 1944 subject to condition that the goods cleared into DTA are not exempt from Sales Tax or Value Added Tax levied by the State Government. According to the Department, this exemption from SAD would not be applicable to the DTA clearances which are not in accordance with the provision of para 6.8 (a) of the Foreign Trade Policy i.e., the DTA clearances in excess of the ceiling of 50% of the FOB value of exports.
1.3 It is on this basis that after issue of show cause notice, the Commissioner by the impugned order -in -original dated 31/8/12 confirmed total duty demand of Rs. 2,56,12,927/ - against the appellant alongwith interest thereon under Sec. 11AB and beside this, imposed penalty of equal amount on the appellant company under Sec. 11AC. By the same order, penalty of Rs. 1,00,00/ - was also imposed on Shri Praveen Garg, Finance Head and Authorised Signatory of the appellant company under Rule 26 of the Central Excise Rules, 2002. Against this order of the Commissioner these two appeals have been filed.
(2.)Heard both the sides.
(3.)Shri B.L. Narasimhan, Advocate, the learned Counsel for the appellant, pleaded that so far as the issue relating to method of calculation of education cess and S&H cess is concerned, the same stands decided in the appellant's favour by Larger Bench judgment of the Tribunal in the case of Kumar Arch Tech Pvt. Ltd. vs. CCE, Jaipur II reported in 2013 (290) E.L.T. 372 (Tri. LB), that as regards the question of Basic Customs Duty exemption in respect of scrap under Notification No. 21/02 -CUS (Sl. No. 200), in terms of this exemption notification, the melting scrap is fully and unconditionally exempt from duty, that this exemption from Basic Customs Duty to melting scrap is not linked with DTA clearances being made in accordance with para 6.8 (e) or 6.8 (a) of the Foreign Trade Policy or otherwise, that in this case the appellant had made clearances of scrap into DTA by paying full duty leviable in terms of proviso to Sec. 3(1) of Central Excise Act, 1944 in terms of which the duty payable in respect of DTA clearances of a 100% EOU is the aggregate of Duties of Customs which has to be determined after taking into account the exemption notification, if any, applicable in respect of the same and such exemption notifications would be applicable irrespective of whether the clearances have been made in accordance with para 6.8 of the Foreign Trade Policy or otherwise, that in respect of the clearances of waste and scrap into DTA, the conditions specified in para 6.8 (e) of the Foreign Trade Policy are relevant only when the exemption under Notification No. 23/03 -CE is availed, that in any case, the appellant had applied to the Development Commissioner in 2009 for determining their input output norms and same had been approved in 2010 and in this regard, the Commissioner's observation in the order that the waste norms having been determined after the DTA clearances are not applicable, is totally wrong, that another ground taken by the Commissioner for denying the Basic Customs Duty exemption under Notification No. 21/02 -CUS is that the scrap had been sold to dealers and, hence, it is not melting scrap, that this stand of the Department is totally incorrect as, the Iron and Steel scrap is used only for melting purposes and nature of the scrap is not determined on the basis of the persons to whom it is sold, that as regards the SAD exemption, Notification No. dated 14/9/07 exempts the goods imported into India from SAD if the Sales Tax or Value Added Tax is leviable on the same and since in this case the goods sold by the appellant into DTA were chargeable to Value Added Tax and VAT has been paid, the SAD exemption has been correctly availed, that in any case in terms of Sl. No. 1 of Notification No. 23/03 -CE, the exemption from the part of the Excise Duty leviable which is equivalent to the SAD, is subject to the condition that the goods cleared into DTA have not been exempted by the State Government from the Sales Tax or Value Added Tax and this exemption from SAD portion of the Central Excise Duty is not subject to the clearances being made in accordance with the provision of para 6.8 (a) of the Foreign Trade Policy, and that in view of the above submissions, the impugned order is not sustainable.