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2022 (4) TMI 988 - AT - Central Excise100% EOU - demand of differential duty - excess DTA clearance, over and above their DTA Sale Entitlement - inclusion of deemed exports made, in the FOB Value of exports for the purpose of DTA Sale Entitlement in terms of Circular dated 7.4.2000 - whether the quantification of DTA sale value in the SCN without adjusting the advance DTA sale allowed by the DC is correct or not? - HELD THAT:- The department has refused to include the deemed exports for DTA sale entitlement on the basis of Board circular dt. 7.4.2000. Needless to say that Board circular is not binding the Tribunal. The issue whether the deemed exports made by the appellant has to be included for determination of DTA sale entitlement has been considered in various decisions. In COMMR. OF C. EX. & CUS., SURAT-II VERSUS SABNAM SYNTHETICS LTD. [2010 (2) TMI 1136 - GUJARAT HIGH COURT], the Hon’ble High Court had occasion to consider an identical issue, where reliance was placed in the case of Ginni International Ltd. v. Commissioner of Central Excise, Jaipur [2001 (9) TMI 165 - CEGAT, COURT NO. IV, NEW DELHI], where the Tribunal has held that when 100% EOU has submitted the permission to sell goods manufactured by them in DTA in accordance with para 9.9 of the Exim Policy, the Government cannot go beyond such permission and dispute the value of clearance allowed by the Competent Authority which in that case is Development Commissioner. Thus, it is clear that value of deemed export have also to be included for computing (FOB) value of exports. Following the same, the demand raised alleging that appellant has exceeded DTA sale entitlement is without any basis. The demand cannot sustain on merits. Extended period of limitation - HELD THAT:- The entire details are available in the records. Further they have made several requests before the Development Commissioner showing their clearances and to include the deemed exports for computing DTA sale entitlement - first SCN for the period 1999-2000 issued invoking the extended period cannot sustain and has to be held as time-barred. Appeal allowed - decided in favor of appellant.
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