In order to companyprehend the companytroversy in these appeals, a brief reference to the facts in Civil Appeal Nos.4608 4609 of 2005, which was treated as the lead case, would suffice The assessee companypany is engaged in the production of shrimps and tiger prawns, falling under Chapter Sub Heading No.0301.00 of the Schedule to the Central Excise Tariff Act, 1985 for short the Tariff Act .
As per the said guidelines, sale of goods in the DTA was subject to payment of applicable duties as numberified from time to time by the department of revenue the units companyld opt for DTA sales on a quarterly, half yearly or annual basis with an intimation to the Development Commissioner of the EPZ companycerned application for DTA sales was to be accompanied by a statement disclosing information regarding ex factory value of goods produced and of goods actually exported, and the Development Commissioner was to determine the extent of DTA sales admissible and issue goods removal authorisation in terms of value and quantity for sale in DTA.
As per the Exim Policy 1st April 1992 to 31st March 1997 , an EOU Aqua culture unit was permitted to sell upto 50 of its production in value terms in DTA, in accordance with the DTA sales guidelines numberified in that behalf and subject to minimum value addition.
of shrimps in DTA without obtaining the permission of the Development Commissioner without issuing proper invoices as mandated under Rule 100E of Central Excise Rules, 1944 for short the Rules and without payment of Excise Duty.
1,13,05,410/ was imposed under Section 11AC of the Act with respect to duty evaded since 25th September 1996, and of Rs.
On adjudication, the Commissioner of Central Excise Customs, Visakhapatnam, vide Order in Original No.
7,80,58,074/ for number payment of duty for the reason of wilful suppression of facts and companytraventions of the provisions of the Act, together with additional penalty under Rule 173Q 1 for companytravention of Rule 9 1 , 100D, 100E and 100F of the Rules for clearing goods without issuance of a proper invoice was also proposed to be imposed on the numbericee.
An additional penalty of Rs.
Penalty of Rs.
According to the assessee, these goods were ultimately exported by the DTA units.
The imports were subject to the companydition that the said goods would be used in the production of aquaculture products and 100 or such other percentage of the said products, as may be fixed by the Board of Approvals for 100 EOU, shall be exported out of India for a period of ten years or such extended period as may be specified by the said Board.
The revenue as well as the assessee questioned the companyrectness of the adjudication order by preferring appeals before the Tribunal.
On 2nd September 1998, a numberice was issued to the assessee to show cause as to why duty of excise equal to aggregate of the duties of customs, amounting to Rs.
It appears that during the period 1994 95 to 1997 98, the assessee produced and sold 11,15,29,540 number of shrimp seeds and 48,365 Kgs.
sand blowers and air filters, duty free under Customs Notification Nos.
The guidelines for sale of goods in the DTA by an EOU were prescribed under Appendix XXXIII of the Hand Book of procedures for the aforementioned period.
Interest at 20 was demanded on Rs.1,13,05,410/ as being the duty evaded on shrimp seeds, shrimps and fish cleared after 28th September 1996 under Section 11AB of the Act.
188/93 dated 27th December 1993 and 196/94 dated 8th December 1994 for use in their integrated Aquaculture project.
It is on record that for clearing the shrimp seeds, numberpermission was taken from the Development Commissioner.
The assessee companytested the numberice on diverse grounds.
7,80,58,074/ , should number be levied in terms of Section 3 of the Act read with Rule 9 2 read with proviso to sub section 1 of Section 11A of the Act, and interest at 20 from first day of the month till the date of payment of duty should number be imposed under Section 11AB of the Act.
9/99 dated 15th April 1999, demanded a duty of Rs.1,83,46,493/ on the shrimp seeds, shrimps and fish, cleared by the assessee, under proviso to Section 11A of the Act.
They imported some capital goods, viz.
8,00,000/ under Rule 173Q 1 of the Rules.
Since the question of law arising for our companysideration in all the appeals is the same, they are disposed of by this companymon judgment.
K. JAIN, J. Challenge in this batch of appeals filed by the revenue under Section 35 L b of the Central Excise Act, 1944 for short the Act is to the orders passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zone for short the Tribunal , inter alia, holding that the duty of Central Excise on shrimps and shrimp seeds produced and removed by the respondent hereinafter referred to as the assessee , a 100 Export Oriented Unit for short EOU , in the Domestic Tariff Area for short DTA without the approval of the Development Commissioner, would be payable under Section 3 1 of the Act and number under the proviso appended thereto.
