Judgment:
S.S. Kang
Heard both sides.
2. Common issue is involved, therefore the appeals are taken up together. The appellant filed these appeals against the impugned orders passed by the adjudicating authority.
3. We find that the duty stands confirmed against the appellant in both the appeals for the period 5th/6th September 2004 when the warehousing facility was withdrawn vide Notification No. 17/2004-CE (NT) dt. 4.9.2004. In one of the appeal the benefit of Notification No.64/95-CE dt. 16.3.1995 has not been extended to the warehoused goods cleared to Indian Nevy in respect of the stock held as on 5th/6th September 2004. In the second appeal the benefit of Notification No. 22/2003-CE dt. 31.3.2003 have not been extended to the warehoused goods cleared to 100% EOU in respect of the stock on the date of the warehousing facility is withdrawn.
4. We find that these issues are decided by the Tribunal in favour of the appellant’s own case in Appeal No. E/405/2006 Final Order dt. 21.8.2007 and the same has been upheld by the Hon’ble Gujarat High Court vide order dt. 18.4.2012 in Tax Appeal No. 435/2008.
5. In view of the above decision, the benefit of Notification No.64/95-CE is available in respect of the warehoused goods cleared to Indian Nevy. Hence, in this regard the demand is not sustainable.
6. In respect of the goods cleared to 100% EOU the issue is also covered by the decision of the Tribunal in the case of India Oil Corporation Ltd. reported in 2008 (230) ELT 177 (Tri.) and the same has been upheld by the Honble Madras High Court in the Case of Commissioner Vs. India Oil Corporation Ltd. 2009 (237) ELT A103 (Mad.). In view of the above decision, the demand is in respect of warehoused goods supplied to Indian Nvey and EOU is not sustainable. Hence it is set aside.
7. In respect of part of the demand, pertaining to the value of the goods cleared from depot at a higher price than the price on which duty is paid at the time of clearance from warehouse and in respect of the shortage, we find that the committee on dispute had not given permission to pursue these demands confirmed on these grounds. From the record, we find that the duty has not been quantified on the ground of valuation and shortage. Therefore, in this regard, the matter is remanded back to the adjudicating authority to quantify the demand on the issue of valuation as well as on shortage and to decide the issue of penalty afresh after affording an opportunity of hearing to the appellants. The appeals are disposed of as indicated above.