Term “allowed to be sold in India” under Proviso to S. 3(1) of Central Excise Act, 1944 applicable only to sales made in DTA of the production by 100% EOUs

Supreme Court: Hearing the appeal where the question was that whether the appellant was eligible to clear goods up to a certain specified limit after obtaining due permission from the Development Commissioner in terms of Export Import (EXIM),  the bench comprising of Dipak Misra and Shiva Kirti Singh, JJ held that the assessee shall be liable to pay the excise duty as per Section 3(1) of the Central Excise Act, 1944. In the present case, Commissioner of Central Excise (CCE) had seized the nylon covered yarn, confirmed the central excise duty and imposed penalty. The appellant appealed before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) and later to a larger bench against the order of CCE who both reiterated the same view and said that the decision taken by the adjudicating authority was adverse. The case was taken to the Division Bench of the Gujarat High Court which later quashed the order of CESTAT and directed them to hear all the appeals again.

Considering the ruling of the Court in SIV Industries ltd v. CCE & Customs (2000) 3 SCC 367 and CCE v. NCC Blue Water Product ltd., (2010) 12 SCC 761, the Court held that it is clear that the expression “allowed to be sold in India” used in proviso to Section 3(1) of the Act would be applicable only to sales made in Domestic Tariff Area of the production by 100% EOUs, which are allowed to be sold into India as per the provisions of the Exim Policy. The Court, hence, said that the Tribunal had taken an erroneous approach while relying upon the above-mentioned rulings and upheld the decision of the High Court.  [Sarla Performance Fibers Limited v. Commissioner of Central Excise, Surat-II, 2016 SCC OnLine SC 593  decided on 03.06.2016]

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