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2018 (11) TMI 354 - CESTAT AHMEDABADEligibility of the exemption N/N. 23/03-CE dated 31.03.03 - exemption to the clearance of goods by EOU to holders of advance license - denial of exemption on the ground that permission of Development Commissioner was not taken by the appellant for effecting the supplies to holders of advance license - it was also alleged that the values of said supplies made to the holders of advance license exhausted the limit of 50% of the FOB Value of export prescribed under para 6.8 (a) of FTP for making DTA sales - time limitation. Held that:- As per the condition 11 of the Notification no any requirement of permission of Development Commissioner exist, therefore as per the plain reading of the Notification together with the condition, exemption is not based on any permission to be obtained from the Development Commissioner, therefore, the contention of the Revenue that the permission of Development Commissioner was not obtained in order to avail the exemption Notification No. 23/2003-CE is patently incorrect and without any basis. Even for the purpose of 50% sealing of DTA export of FOB value of exports, the issue have been settled that for calculating the 50% not only the physical exports but also the deemed exports should also be considered. Time Limitation - Held that:- Since the appellant have been supplying the goods to advance license holder by intimating to the department and the departmental officer was debiting the advacne license/ advance release order the entire facts was well within the knowledge of the Department, therefore, there is no iota of suppression or mis-declaration on the part of appellant hence, the demand for the extended period issued in the SCN dated 05.05.2009 is clearly time barred. Whether for removal of scrap in DTA for computing the 50% of FOB value of export, whether the export includes deemed exports or otherwise? - Held that:- This issue has been considered time and again in the case of Nandan Synthetics P. Ltd. vs CCE [2014 (6) TMI 128 - CESTAT AHMEDABAD], where it was held that the assessee is eligible to clear goods to Domestic Tariff Area by taking 50% of the deemed exports value as their eligibility. Appeal allowed - decided in favor of appellant.
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