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2022 (5) TMI 982 - AT - Central ExciseDemand of differential duty - Similar Goods - export of goods to DTA exceeding the limit of 50% of on board value of exports - benefit of N/N. 51/96-Cus. dated 23.07.1996 denied - clearance of the goods not similar to goods exported, denying benefit of N/N. 23/2003-CE. - full rate of duty on sale is to be paid when Customs Exemption Notifications - requirement to pay second time in respect of DTA clearance the Education Cess and Secondary higher Education Cess - non-submission of certificate signed by an authority not belong the rank of Deputy Secretary to the Govt. of India under Customs Notification No.21/2002 (as amended by Customs Notification No.20/2007) and Customs Notification No.12/2012 - HELD THAT:- In the present case, the appellants contend that the goods exported by them as well as cleared to DTA are precision optical components and are similar to the goods exported. The department alleges that goods are not similar and that the earlier case applies only in respect of cover and coveter glasses and therefore not applicable to the present case. The goods other than cover and coveter glasses which fall under the current show cause notices are listed out in para-16 of the OIO. The reason stated by original authority for confirming the demand is that the appellant did not submit any conclusive technical proof to prove that the goods cleared are “similar goods” as envisaged in the notification. Apart from this, there is no other discussion given thereto - Commissioner (Appeals) also has reiterated that the appellant has not produced any technical proof to show that the goods are not ‘similar’. It is to be seen that appellant is authorized to manufacture precision optical components, instrument assemblies / sub-assemblies. Such authorization is given by the Secretariate of Industrial Approvals from the Department of Industrial Development under the Ministry of Industry. The goods can be cleared only when the Development Commissioner grants permission for the same - The DTA clearances are governed by para 6.8 of FTP and the appellants have obtained permission from the Development Commissioner for making such DTA clearances. The argument of the Ld. Counsel that such permission is granted only when Development Commissioner is satisfied that the goods are similar is not without substance. When the appellants have been given permission to clear the goods in DTA by the DC, the department cannot then vaguely allege that they are not similar goods. In the present case, the appellant has furnished a Chartered Engineer certificate dt. 12.03.2019 certifying that the goods are similar and fall within the category of precision optical components. The said certificate has been brushed aside by the Commissioner (Appeals) stating that it is merely an after-thought. The Commissioner (Appeals) has failed to note that it is an opinion given by an expert and unless there is some evidence to rebut such opinion, the certificate issued by the Chartered Engineer cannot be discarded in toto. The allegation raised in the SCN that the goods are not “similar goods” is without any basis - demand do not sustain - appeal allowed - decided in favor of appellant.
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