GINNI INTERNATIONAL Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) IN this appeal which has been filed by the appellants, the issue relates to the availability of the benefit of the Notifications No. 8/97, dated 1 -3 -97 and 55/91 -C.E. to the appellants. The adjudicating authority, however, allowed the benefit of these Notifications to the appellants in respect of the clearances made by them in DTA, although they are 100% EOU. The learned Commissioner (Appeals) has reversed that order through the impugned order -in -appeal, by holding that benefit of these Notifications is not available in respect of the clearances made by the appellants as a 100% EOU in DTA. This view of the learned Commissioner (Appeals) finds corroboration from the ratio of law laid down by the Tribunal in Parasrampuria International v. CCE, Indore - 2003 (152) E.L.T. 142 (T) = 2002 (52) RLT 545 wherein it has been clearly observed that the benefit of the above said Notifications to the 100% EOU is not available in respect of the DTA clearances. Therefore, we do not find any illegality in the impugned order passed by the Commissioner (Appeals). We affirm the order.

(2.) HOWEVER , the learned Counsel has prayed for setting aside the penalty of Rs. 15,000/ - confirmed against the appellants through the impugned order of the Commissioner (Appeals) on the ground that the adjudicating authority decided the issue in favour of the appellants and earlier the Board's Circular was also in favour of the appellants allowing the benefit of the Notifications in question, but it is only later on through another Board's Circular dated 19 -10 -2000, the position became clear that the benefit of the Notifications was not available to the 100% EOU for the DTA clearances. According to the learned Counsel there was no mala fide intention on the part of the appellants to evade duty. On the other hand, the learned JDR has contested this prayer of the Counsel, by contending that the earlier Board s Circular did not help the appellants in clearing the goods in DTA and as such, they are liable to pay the penalty also.

(3.) WE have gone through the record. We find that earlier there was a doubt about the liability of the 100% EOU to pay the duty on the DTA clearances and there was also Board's Circular earlier which created this doubt in the minds of the appellants. The appellants have already paid the entire duty and this is enough to indicate that they had no mala fide intention when they were denied the benefit of the Notifications in question referred to above, they deposited the amount. Keeping in view facts, circumstances and the conduct of the appellants, we find it a fit case to set aside the penalty. Therefore, the penalty imposed on the appellants under Rule 209 is set aside. Except for this modification in the penalty, the impugned order of the Commissioner (Appeals) on merits is upheld.