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2012 (12) TMI 584 - CESTAT NEW DELHIDTA clearance by 100% EOU - Whether assessee would be eligible for concessional rate of duty under notification no.23/03-CE in respect of the DTA sales for which there was no permission from the Development Commissioner - DTA sales made by assessee were in excess of the permitted DTA sales upto 31.3.2008 - On the payment of duty at the concessional rate under Notification No.23/03-CE – Further, the assessee made DTA clearances from 1.4.08 to 31.09.2008, without the permission from the Development Commissioner at concessional rate of duty - Revenue contended that, DTA sales made in excess of the permitted value and without approval were not eligible for concessional rate – Held that:- For the period 2007 -2008, the DTA clearances made by the appellant were in excess of the permitted clearances by an amount and the same cannot be said to be in accordance with the provisions of para 6.8 of the Foreign Trade Policy and hence, would not be eligible for concessional rate of duty The period 1.4.2008 to 30.09.2008, the assessee not produced any letter from the Development Commissioner permitting the DTA clearances for this period. In absence of the Development's letter, it cannot be said that during this period the appellant had achieved positive NFE or that DTA clearances were within 50% of the FOB value of the exports. In view of this, we are of the prima facie view that for this period also, the appellant would not be eligible for concessional rate of duty under Notification No.23/03-CE. In favour of revenue
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