HIMALAYA INTERNATIONAL LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) The appellants are an EOU. The impugned order has been passed demanding duty and imposing penalty on them on the ground that goods (canned vegetables) were cleared to the Domestic Tariff Area, contrary to the permission granted by the Development Commissioner, and without payment of appropriate excise duty under the proviso to Section 3(1) of Central Excise Act, 1944. It is the appellant's contention that the permission granted by the Development Commissioner covered canned vegetables also and that the rate of duty applicable is the rate under Section 3(1) and not the rate in terms of proviso to Section 3(1) of the Central Excise Act.

(2.) We have perused the records and heard both sides. We find that the dispute about permission of Development Commissioner is not of much relevance for determining this appeal and the dispute of substance is the issue as to what should be the rate of duty on the goods cleared to the Domestic Tariff Area. The impugned order has demanded duty on the goods at tariff rates under the proviso while the appellant had claimed that duty should be levied under main proviso to Section 3 of the Central Excise Act, i.e. rates applicable to goods manufactured by a Non -EOU and sold to Domestic Tariff Area. We find that this dispute no more survives in view of the order of the Larger Bench of this Tribunal vide Miscellaneous Order No. 101/2003 -NB -A, dated 21 -2 -2003 [2003 (154) E.L.T. 580 (Tri. - LB)] = 2003 (56) RLT 842]. In terms of the Larger Bench decision, all goods cleared to the Domestic Tariff Area by an EOU, whether with the permission or without the permission of the Development Commissioner, would attract duty in terms of the proviso to Section 3(1) of the Central Excise Act. A connected submission of the appellant's learned Counsel is that duty leviable under the Proviso to Section 3(1) is the effective rate of duty and not the tariff rate as applied under the impugned order. According to him, the applicable rate of duty is the effective rate fixed under Notification No. 13/98, dated 2 -6 -98. He also points out that the amount of duty payable at the effective rate under Notification No. 13/98 would be only Rs. 5.65 lakhs as against the demand in the impugned order over Rs. 60 lakhs at tariff rate. On this point, we are unable to find any scope for dispute at all. Duties leviable are the effective rates of duty and not tariff rates. Relief is warranted on this score. It is, accordingly, ordered that the jurisdictional authority shall work out the duty demand on the goods cleared to the DTA at the effective rates provided under Notification No. 13/98. Pending such recalculation, the appellant shall make deposit of the undisputed amount of Rs. 5.65 lakhs within 2 (two) weeks from today. If upon recalculation, the correct amount due is found to be higher than Rs. 5.65 lakhs, the appellant shall make good the difference. Instead, if the amount due is found to be less than Rs. 5.65 lakhs, the appellant shall be entitled to the return of the excess amount.

(3.) The second issue involved in this appeal is whether imposition of penalty on the appellant under Rule 209 of the Central Excise Rules was justified. The appellant's contention is that they had obtained permission from the Development Commissioner for sale of the goods to the DTA. It is also pointed out that the clearances were under prescribed Central Excise documents. In case the appellant's claim that the goods were covered by the permission was not correct, it was open to the jurisdictional Central Excise authorities to reassess the goods and demand duty. It is, therefore, contended that no contumacious conduct on the part of the appellant was involved to warrant imposition of penalty, it is also pointed out that the DTA supplies were to the Armed Forces of the Union of India. We find merit in this contention. An EOU works under obligation to re -export the goods. Clearances to the DTA were with the knowledge of the Central Excise authorities. In case there was dispute between the appellant and the Cental Excise Authorities as to whether the permission granted by the Development Commissioner covered canned vegetable, that dispute is more in the nature of difference in interpretation of a provision and does not involve any fraud on the part of the appellants. Accordingly, we are of the view that imposition of penalty is not warranted. Penalty imposed is, therefore, set aside.