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2018 (8) TMI 356 - CESTAT AHMEDABAD100% EOU - it was alleged that that the appellant had failed to physically export ‘stamper for CD’ admitted the fact that the appellant had cleared ‘stamper for CD’ on payment of concessional rate of duty in the domestic tariff area under the permission granted by the deputy / joint Development Commissioner, KSEZ Gandhidham - concessional rate of duty. Held that:- The appellant themselves treated both types of goods i.e. Stamper (Mother DVD) and CD/ CD-R as different goods and for that reason only they have obtained the permission for clearance of 50% of stamper in the DTA market vide development Commissioner’s Letter dated 20.12.2002, the said permission carrying the clear condition of adjustment of facility against future entitlements. Thereafter, when the appellant could not made export of stamper the 50% of FOB value for DTA clearance was not complied with. Since the appellant could not have adjusted the facility of DTA clearance against export of CD/ CD-R they kept on taking extension for that purpose from the Development Commissioner. Therefore, the appellant themselves treated CD/ CD-R and Stamper as a different goods. Now their stand that both are similar goods is contrary to their own stand and on the fact - the nature of goods i.e. stamper and the CD/ CD-R are clearly distinct. The stamper is used for making the CD/ CD-R whereas CD/ CD-R is loaded CD with the media/ data, therefore, both are completely distinct products. In the present case, it is an advanced DTA permission with specific conditions that the appellant will fulfill the condition of export of the similar goods and same will be adjusted in the future entitlements, therefore, in failure to comply with the said condition, the benefit of the said permission of the Development Commissioner is not available to the appellant. Extended period of limitation - Held that:- The appellant themselves opted for advanced DTA permission subject to condition that they will fulfill the condition of export in future and they themselves taken the extension for fulfilling the condition which has been extended upto 31.05.2004 by the Development Commissioner and as per letter dated 28.03.2003 the Development Commissioner allowed the two years from 06.12.2004 for adjustment of the DTA sale value - The SCN was issued on 26.06.2007 when it was found that the appellant could not comply with the condition of adjustment of value of DTA clearance since no export of stamper could be made, therefore, the SCN cannot be said to have been issued as time bar. Appeal dismissed - decided against appellant.
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