MARAL OVERSEAS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) M /s. Maral Overseas Ltd. have filed this appeal against Order -in -Original No. 2/2001, dated 24 -1 -2002 by which the Commissioner has confirmed the Central Excise duty amounting to Rs. 57,14,782/ -.

(2.) SHRI B.L. Narasimhan, learned Advocate, submitted that the Appellants, a 100% Export Oriented Undertaking, manufacture cotton yarn/fabrics and garments thereof; that they clear these goods for sale in Domestic Tariff Area (DTA) on payment of duty under Notification No. 8/97 -C.E., dated 1 -3 -97; that under the said Notification, duty leviable is exempt in excess of the Central Excise duty leviable under Section 3 of the Central Excise Act, subject to the condition that such goods are manufactured using materials procured indigenously; that a show cause notice was issued to them for demanding duty of Rs. 89,73,845/ - in respect of the goods cleared to D.T.A. on the ground that imported wax was used by them and as such benefit of Notification No. 8/97 was not available; that the Commissioner under Adjudication Order No. 19/99, dated 26 -3 -99 discharged the notice holding them eligible for the benefit of the said Notification; that, however, on appeal filed by the Revenue, the Tribunal vide Final Order No. 478/2001 -D, dated 30 -1 -2001 held that they were not entitled to the exemption under Notification No. 8/97 -C.E. and remanded the matter to the Commissioner for considering the aspect of time limit; that the Commissioner, under the remand proceedings has held that demand up to 30 -6 -97 is barred by time limit under Section 11A(1) of the Central Excise Act; that they are liable to pay duty under Notification No. 2/95 -C.E.; that the Commissioner did not accept their contention that only Basic Customs duty is payable and Countervailing duty is not payable.

(3.) THE learned Advocate, further, submitted that Notification No. 2/95 as it stood during the disputed period (1 -7 -1997 to 31 -1 -1998) "referred to duties of customs leviable under Section 12 of the Customs Act"; that only in September, 1999, the Notification was amended to read as "duties of Customs leviable under the Customs Act, 1962 or under any other law for the time being in force"; that this amendment is not retrospective in nature though proviso to Section 3(1) of the Central Excise Act was amended retrospectively; that thus in respect of DTA clearance effected by the E.O.U. in terms of Notification No. 2/95 -C.E. prior to September, 1999 only 50% of the basic Customs duty is leviable and not any other duties of Customs; that this issue has been settled by the Larger Bench of the Tribunal in the case of Fabworth (India) Ltd. v. CCE, Nagpur - [2002 (143) E.L.T. 663 (Tri.) = 2002 (51) RLT 411 (CEGAT -LB)].