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2013 (2) TMI 416 - CESTAT NEW DELHIWaiver of pre-deposit – Stay Petition - Demand - DTA clearance by 100% EOU - Calculation of Duty payable in respect of DTA clearances - proviso to Section 3 (1) of the Central Excise Act, 1944 - Whether on the aggregate of the duties of customs (basic customs duty + cess + Additional customs duty + cess) which is the excise duty payable on the DTA clearances, the education cess would be chargeable again – Held that:- Since the issue still pending with Larger Bench, it can be said that the appellant have an arguable case Classification of the Coin Blanks – Appellant classify under Heading No.74.09 - Department classify "articles of copper" under sub-heading no.74.19 on the basis of Section Note 6 to Section Note XVI – Held that:- Section Note VI to XVI is in respect of the machinery items, it would not be correct to apply the same to the products of Chapter Note 74 falling under Section XV. Moreover, coin blanks which are used for manufacture of coins have not attained the shape or character of an article and as such, the same cannot be said to be articles of Copper or Copper Alloys. Therefore, of prima facie view that in terms of Chapter Note 1 (g) to Chapter 74, the Copper Alloys Coin Blanks would be correctly classifiable under Heading no.7409 Entitlement of DTA clearances – 100% EOU manufactures two or more products for export – Department claimed that DTA entitlement of each product would be limited to 50% of the FOB value of its exports – Assessee claimed that he can sell any product into DTA upto 90% of the FOB value of its clearances - Held that:- Since the items exported by the appellant the 'Copper Alloys Coin Blanks and Copper Zinc Nickel Strips' are the similar products, both falling Under Heading no.7409 and since their DTA clearances are within the overall entitlement of 50% the FOB value of the exports. As per the provisions of para 6.8 (a) of the Foreign Trade Policy, the DTA clearances of any one of these products can be made upto 90% of the FOB value of its export. DTA sales of Copper alloy coin blanks are well within 90% of their clearances. Therefore, does not appear to be sustainable – Stay granted
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