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2023 (2) TMI 825 - SC - Central Excise100% EOU - power of review own order - Power of Development Commissioner - grant of DTA sale permission - grant on the basis of clubbed value of physical exports and deemed exports - availment of concessional rate of excise duty under Section 3(1) of the Central Excise Act, 1944 as prescribed under Notification Nos. 8/97-C.E. and 2/95-C.E. - HELD THAT:- The term “FOB value of exports” has also been used in the application format whereby deemed exports had been considered at par with physical exports. As a consequence, the respondent submitted deemed export data at the time of applying for DTA sale. Although the appellants have contended that this requirement was only for the purpose of calculation of NFEP achievement, it appears that there was no explicit distinction between deemed exports and physical exports during the application process. In view of the above position of law emanating from Para 9.9(b) of the EXIM Policy as stood at the relevant time and the decision of this Court in Virlon Textile [2007 (4) TMI 6 - SUPREME COURT], the very basis of the show cause notice issued in this matter to the respondent seeking to question the permission granted after about 10 years when it had already been operated and executed, cannot be countenanced. For this reason alone, this appeal is required to be dismissed. Power to Review - HELD THAT:- The High Court has, of course, essentially set aside the order impugned as passed by the Development Commissioner for want of power of review while relying on its own decision in the case of Hanil Era [2011 (2) TMI 1467 - BOMBAY HIGH COURT], wherein it was held that without the statute having conferred any such power, the order earlier passed could not have been reviewed. However, it is noticed that the said decision of the High Court was examined by this Court in the judgment [2013 (10) TMI 1467 - SUPREME COURT], wherein, while leaving aside the question of power of review, this Court permitted the Ministry of Commerce and Industry to issue appropriate show cause notice. In the present case, when the orders impugned are not being sustained on merits, we would leave this question open to be examined in an appropriate case. Appeal dismissed.
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