ORDER
J.H. Joglekar, Member (T)
1. On hearing both sides on the stay applications in appeared that a pint of law, the appeal itself could be taken up for disposal. This was done by granting waiver as prayed for in each case.
2. Since the two appeals arise out of the common order these are being disposed of vide this common order.
3. M/s. Suresh Synthetics are a 100% EOU. Shri M.G. Sharma is the Director thereof.
4. In terms of paragraph 9.10 of the relevant EXIM Policy, such EOU’s wee permitted to sell part of their production in the Domestic Tariff Area against payment. The appellants removed the goods totally valued at Rs. 26,83,311 against such payment but without discharging the burden of duty. Show cause notice was issued on 14.7.2000 demanding Customs duty of Rs. 23,85,684 in terms of Section 28(1) of the Customs Act, 1962. Allegations were made that the EOU was liable to penalty under Section 72 and 114(A) of the Customs Act, and that Shri M.G. Sharma was liable to penalty under Section 112(b) and 117 of the Customs Act. Interest under Section 28AB of the Customs Act, was also demanded. The Commissioner after hearing the person passed orders confirming the demand, imposing the penalties and directing interest to be paid. The appeal is against this order.
5. The short point raised by Shri V.S. Nankani is that duties to be paid by the EOUs for clearances in the DTA are duties of excise and not of Customs [Noel Agritech Ltd. Vs. Commissioner of Customs] 2001 (128) ELT 227 (Tri.-Chennai]. It is his claim that the show cause notice is defective in law and cannot sustain the demand. In this argument he relied upon Larger Bench decision of the Tribunal in the case of Vikram Ispat Vs. Commissioner of Central Excise, Mumbai-III [2000 (120) ELT 800 (Tribunal-LB)].
6. Shri G.M. George arguing for Revenue submits that the case of evasion of duty stands proved on record and the inadvertent wrong mention of the provisions of law should not vitiate the proceedings.
7. We have considered the submissions.
8. The show cause notice refers to the provisions of section 3 of the Central Excise Act, 1944. it also shows that the concerned person were interrogated under the provisions of central Excise Act. Therefore the allegation of demanding duties and imposing penalty are patent errors rendering the proceedings unsustainable.
9. The appeals are allowed. The impugned order is set aside.
(Pronounced in Court)