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

JUDGEMENT

(1.) The dispute in the present appeal is about the rate of duty applicable to goods which are cleared from EOU without obtaining the permission of the Development Commissioner. In the present case, the period of dispute is July, 1999 to November, 1999. Under the impugned order duty has been imposed at the rate mentioned in proviso to Section 3(1) of the Central Excise Act.

(2.) The duty demand is being contested before us relying on the decision of the Bangalore Bench of this Tribunal in the case of Kuntal Granites (P) Ltd. v. CCE, Belgaum [2001 (132) E.L.T. 214] and Circular No. 618/9/2002 -CX, dated 13 -2 -2002. During the hearing of the stay petition, Id. Counsel for the appellants pointed out that 'B' Bench of this Tribunal has also allowed Appeal No. E/E/739/2001 -B [Treasure Tech. Electronics v. CCE Delhi - 2002 (140) E.L.T. 398 (T)] on the same issue.

(3.) Both Tribunal's decision in the case of Kuntal Granites and circular of the Board are based on the decision of the Apex Court in the case of SIV Industries Ltd. v. CCE [2000 (117) E.L.T. 281 (S.C.)]. The ld. Counsel points out that the circular as well as the Bangalore Bench of this Tribunal have held that in cases where goods are cleared to DTA by an EOU without the same being allowed by the Development Commissioner, duty applicable would be in terms of Section 3(1) of the Central Excise Act, that is to say, the rate of duty payable by an non -EOU manufacturer in respect of sales for domestic consumption.