LexCOMMISSIONER OF CENTRAL EXCISE, VISAKHAPATNAM-II versus M/S. NCC BLUE WATER PRODUCTS LTD.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2010] 11 S.C.R. 741
COMMISSIONER OF CENTRAL EXCISE,
VISAKHAPATNAM-11
v.
M/S. NCC BLUE WATER PRODUCTS LTD.
(Civil Appeal Nos.4608-4609 of 2005)
SEPTEMBER 24, 2010
[D.K. JAIN AND H.L. DATTU, JJ.]
A
B
.. Central Excise Act, 1944 - s.3(1) or its proviso - Sale of
shrimps and shrimp seeds in Domestic Tariff Area by an EOU
C
without approval of the Development Commissioner -'-
Exigibi/ity to excise duty - Held: Excise duty to be assessed
under s. 3(1) and not under proviso to the said section -
Circular No. 6181912002-CX dated 13th February, 2002
issued by CBEC - Exim Policy 1992-1997 - Handbook of D
. Procedures - Appendix XXX/11.
The question which arose for consideration in the
instant appeals was whether the sales of shrimps and
shrimp seeds by the assessee-respondent, a 100%
E
export oriented undertaking (EOU), in the Domestic Tariff
Area (OTA) without the approval of the Development
Commissioner were liable to . {Cise duty under Section
3(1) of the Central Excise Act, 1944 and not under the
proviso appended thereto.
F
Dismissing the appeals, the Court
HELD: 1. All excisable goods produced or
. manufactured in India are exigible to duty of excise under
Section 3 of the Central Excise Act, 1944, the charging
G
Section, at the rates set forth in the Schedule to the
Central Excise Tariff Act. However, proviso to the said
Section provides that the duties of excise on any
excisable goods, which are produced or manufactured
741
H
742
SUPREME COURT REPORTS
[2010] 11 S.C.R.
A by a 100% EOU and allowed to be sold in India shall be
an amount equal to the aggregate of the duties of
customs which would be leviable under Section 12 of the
Customs Act, 1962. [Para 15] [751-C-D]
8
2. It was held in *SIV Industries that if the goods were
sold without the permission of the Central Government
to debond the unit, the duty on the goods sold by the
assessee was leviable under main Section 3(1) of the Act.
After the decision in *SIV Industries' case, a Circular was
issued on 13th February, 2002 by the Central Board of
C Excise & Customs, New Delhi clarifying that prior to 11th
May, 2001, the clearances from EOUs, if not allowed to
be sold in India, shall continue to be chargeable to duty
under main Section 3(1) of the Act. [Paras 16, 17] [751-F-
G; 752-E]
D
E
*SIV Industries Ltd. v. Commissioner of Central Excise
& Customs 2000 (117) ELT 281 (SC), relied on.
Circular No. 6181912002-CX dated 13th February, 2002
issued by CBEC - referred to.
3. According to the Exim Policy 1992-1997 read with
Appendix XXXlll of the Handbook of Procedures, an EOU
may sell 50% of its production in value terms into a
Domestic Tariff Area only on issuance of a removal
F authorization by the Development Commissioner. In the
instant case, admittedly at the time of sales of shrimps
and shrimp seeds by the assessee in OTA, the
Development Commissioner had not issued the requisite
removal authorization. Therefore, in view of the dictum of
this Court in *SIV Industries, and the Circular dated 13th
G February, 2002, excise duty on such sales is chargeable
under main Section 3(1) of the Act. [Paras 18, 19] [754-A-
D]
4. The controversy with regard to the classification
H of the shrimp seeds is academic in nature as even if the
COMMNR. OF CENTRAL EXCISE, VISAKHAPATNAM v.
743
NCC BLUE WATER PRODUCTS LTD.
finding of the Commissioner on classification of shrimp
A
seeds under sub-heading 0301.00 of the Central Excise
Tariff Act is affirmed, still the duty payable on these goods
would be nil. Similarly, if the excise duty payable is nil,
the other question regarding the extended period of
limitation on the alleged ground of suppression of sales
8
also pales into insignificance. [Para 20, 21] [754-D-E-H;
755-A-B]
Sam Spintex Ltd. v. Commissioner of C. Ex., Indore
2004 (163) E.L.T. 212 (Tri.-Del.); Commissioner of Central
Excise, Jaipur-II v. Pratap Singh 2003 (153) E.L.T. 711 (Tri.-
C
Del.); Modern Denim Ltd. v. Commissioner of Central Excise,
Ahmedabad 2005 (191) E.L.T. 1174 (Tri.-Mumbai); M/s
Padmini Products v. Collector of Central Excise, Bangalore
(1989) 4 SCC 275; Collector of Central Excise, Hyderabad
v. Mis Chemphar Drugs & Liniments, Hyderabad (1989) 2
D
SCC 127; Gopal Zarda Udyog & Ors. v. Commissioner of
Central Excise, New Delhi (2005) 8 SCC 157, referred to.
Case Law Reference:
2000 (117) ELT 281 (SC)
. relied on
Para 11
2004 (163) ELT 212 (Tri.-Del.)
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