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2020 ] COMMR. OF C. EX., NAGPUR v. UNIVERSAL FERRO & ALLIED CHEMICALS LTD. 19

pearing for the appellant-Revenue and Shri M.H. Patil, Learned Counsel appear-
ing on behalf of the respondent - UFAC.
14. The main contention raised by Shri Radhakrishnan, Learned Senior
Counsel on behalf of the Revenue is that, in view of proviso to sub-section (1) of
Section 3 of the Act, the duty which is liable to be levied and collected on any
excisable goods manufactured by a 100% EOU and brought to any other place in
India shall be leviable as per the duties of Customs, which are leviable under the
Customs Act, 1962 on like goods produced and manufactured outside India, if
imported into India. It is contended, that the proviso to Section 5A of the said Act
specifically provides, that no exemption granted under Section 5A shall apply to
the excisable goods which are produced or manufactured by a 100% EOU and
brought to any other place in India. He further submits, that in the transaction
between the UFAC and TISCO, there is no transfer of property in goods to the
UFAC and, as such, it cannot be considered to be a sale under Section 4 of the
Sale of Goods Act, 1930. The Learned Senior Counsel therefore submits, that the
order passed by the CESTAT deserves to be set aside and the orders-in-original
passed by the Commissioner (Appeals) need to be maintained.
15. It is further contended by Shri Radhakrishnan, Learned Senior
Counsel, that the words “allowed to be sold in India” in clause (ii) of proviso to
sub-section (1) of Section 5A of the Act have been substituted by words “brought
to any other place in India” with effect from 11-5-2001. He therefore submits, that
in view of change in law from 11-5-2001, the statutory force of the said Exemp-
tion Notification is lost from 11-5-2001. In his submission, the said Exemption
Notification would stand impliedly repealed with effect from 11-5-2001. He relies
on the judgments of this Court in the cases of (1) M. Karunanidhi v. Union of India
& Anr., (1979) 3 SCC 431; (2) Dharangadhra Chemical Works v. Dharangadhara Mu-
nicipality and Anr. (1985) 4 SCC 92; and (3) Ratan Lal Adukia v. Union of India,
(1989) 3 SCC 537. He further submits, that the terms “allowed to be sold in India”
and “brought to any other place in India” have been considered by this Court in
the cases of Siv Industries Ltd. v. Commissioner of Central Excise & Customs [(2000) 3
SCC 367 = 2000 (117) E.L.T. 281 (S.C.)] and Sarla Performance Fibers Limited and
Ors. v. Commissioner of Central Excise, Surat-II [(2016) 11 SCC 635 = 2016 (336)
E.L.T. 577 (S.C.)] and as such, the UFAC would be liable to pay duty as if the
goods were imported into India.
16. Shri M.H. Patil, on the contrary submits, that the case of the present
appellant is covered by paragraph 9.9(b) of the EXIM Policy and not by para-
graph 9.17(b) of the EXIM Policy. He further submits, that all the transactions
made by UFAC were made only after the valid permissions were granted by the
Joint Development Commissioner, SEEPZ. Learned Counsel further submits,
though initially vide Circular dated 14-9-1998 (No. 67/98-Cus.) the permission to
undertake job work to EOU/EPZ from the DTA units was restricted only to units
in textile, readymade garments, agroprocessing and granite sectors and subse-
quently vide Circular dated 5-11-1999 (No. 74/99-Cus.) it was extended to certain
other units; by a subsequent Circular dated 22-5-2000 (No. 49/2000-Cus.), the
said facility was extended to all the sectors. He submits, that this fact has not
been taken into consideration by the Authority passing the Orders-in-Original. It
is submitted that the Sponsoring Authority i.e. the Development Commissioner,
SEEPZ had clarified the position that the activity which was carried out by the
UFAC was permissible under paragraph 9.9(b) of the EXIM Policy.

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