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2014 (9) TMI 842 - AT - Central Excise100% EOU - Whether the DTA entitlement considered and fixed by the Development Commissioner can be questioned by the excise authorities or not and if there is any error in the computation of excise duty demand can be suo motu issued by the excise authorities - Benefit of concessional rate of excise duty under Notification No. 22/2003-C.E., dated 31-3-2003 - Held that:- This issue has been settled by the decisions in the case of Amitex Silk Mills Pvt. Ltd. and Virlon Textile Mills Ltd. case [2005 (10) TMI 128 - CESTAT, NEW DELHI] in favour of the appellant and against the Revenue. As regards the question whether clearances effected into the DTA under Para 6.8(a) of the Foreign Trade Policy, “deemed exports” could be considered or not, the Circular relied upon by the Revenue deals with the situation where supplies are made under Para 6.9 of the Foreign Trade Policy and not to clearances made under Para 6.8(a). If the Revenue has any doubt whether the clarification given in the letter dated 26-12-2008 would apply to computation of DTA entitlement under they should have referred the matter to the Development Commissioner before taking suo motu action. Therefore, the impugned order confirming the demand without seeking any clarification from the Development Commissioner is clearly unsustainable in law. The Development Commissioner is vested with the power to decide the quantum of DTA entitlements and not the Commissioner of Central Excise. In these circumstances, we are of the considered view that the matter has to go back to the adjudicating authority for making a reference to the Development Commissioner in this regard and thereafter, based on the clarification received from the Development Commissioner to consider whether any proceedings need to be initiated against the appellant or not. Thus, the appeal is allowed by way of remand - Decided in favour of assessee.
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