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2015 (2) TMI 125 - AT - Customs100% EOU - DTA clearances - products are not similar to the goods exported or expected to be exported - Denial of benefit of concession availed under Notification No. 23/2003-C.E., dated 31-3-2003 - Held that:- If a unit is manufacturing only one product, the unit can sell 50% of FOB value of exports and if the unit is manufacturing more than one product and exporting, they can sell 90% of FOB value of export of the specific products subject to the condition the average DTA sale does not exceed 50%. Therefore, the most important question that arises is whether the assessee before us is engaged in the manufacture of one product or multiple products. Apparently, the Department has taken a view that it is multiple products and a common man’s understanding would be the same. Going by layman’s understanding and going by the meaning of similarity in the dictionary, it is difficult to accept the submission that the 4 items in dispute are similar to the ones which have been exported. The reliance on Appendix 16A which gives the list of products which would be eligible for the facility on the ground of 100% exports, it appears that even though the heading gives tentative list of products, the objective in the list does not seem to list out individual products rather than category. Decision in the case of Consolidated Coin Co. Ltd. (2013 (2) TMI 416 - CESTAT NEW DELHI) is only an interim order and the Tribunal was considering dispensation of pre-deposit. In that case, the Tribunal straightaway accepted the similarity of the items in dispute and when there is no discussion and no law has been laid down, this decision cannot be applied. As regards the decision in the case of Hindustan Lever Ltd. (2010 (10) TMI 532 - CESTAT, CHENNAI), this was rendered while considering the Notification No. 2/95-C.E. and there a view was taken that fresh mushrooms and processed mushrooms are similar and it was held that both belong to same classification of goods and therefore similar. In this case also, there was no detailed discussion and the consideration was only of the products before the Tribunal. When decisions are taken in respect of particular products, it may not be correct to apply the decisions straightaway to other products. The discussion above would show that this is a case where it cannot be said that appellant has a strong prima facie case but issue is one which is highly technical, debatable and requires consideration of various provisions of FTP, policy relating to 100% EOU and also technical terms and the meaning of the word ‘similar’ and its detailed examination which can be done at the time of final hearing. - Partial stay granted.
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