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TMI Blog2009 (5) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... % EOU manufacturing Cotton Yarn and Polyester Yarn and they were permitted certain quantities to be sold by the Development Commissioner in DTA; they have removed the quantities in excess of the permissible limits and, therefore, the Department has held that whatever was cleared in excess of the permissible limit is not eligible for concessional rate of duty prescribed under Notification No. 8/97-C.E., dated 1-3-97 and accordingly, duty stands demanded and penalty stands imposed. These duty demands have been made on the basis of six show cause notices issued periodically and adjudicated through a common order. 3.2 At the outset, it is to be noted that the matter is before the Tribunal for the second time having been remanded to the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Development Commissioner for DTA clearances' permission, the applicant has only furnished the figures of physical exports. (f) The clearances have been made after payment of duty applying the concessional rate of duty following Notification No. 8/97-C.E. and under these circumstances, invoking the provisions of Rule 25 and imposing mandatory penalty is not warranted. (g) The applicant-company is facing serious financial hardship and the applicant-company though was referred to BIFR in view of the SARFASI Act, 2002, the banks have taken over the company and subsequently, sold the same. He also relies on the decision of the Hon'ble Supreme Court in the case of Parekh Platinum Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate prescribed under Notification 8/97 is applicable only in respect of clearances permitted by the Development Commissioner, and any clearance to DTA in excess of the permitted clearances have to pay duty without taking into account any exemption as settled in the case of Jaipur Golden Transport Co. Pvt. Ltd. v. CCE, Surat reported in 2007 (215) E.L.T. 503 (Tribunal-LB). 6. We have carefully considered the submissions from the both sides. Prima facie, we find that the applicant has cleared much in excess of permitted DTA clearances and the exemption claimed is not available as held in the case of Jaipur Golden Transport Co. Pvt. Ltd. (supra). The claim that the demands are hit by time bar is not acceptable. The demands have been is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess of the permitted DTA clearances. Why such clearances were resorted to in excess of the what was permitted by the Development Commissioner is not forthcoming. The Revenue's interest also requires to be taken into account.
9. Having regard to the entire facts and circumstances of the case including the plea of financial hardship made by the applicant, we direct the applicant to deposit a sum of Rs. 50,00,000/- (Rupees Fifty Lakhs only) within eight weeks from today and to report compliance on 9th July, 2009. Subject to pre-deposit of the amount as mentioned above, we waive pre-deposit of the balance amount of duty, interest and penalty till the disposal of the appeal.
(Order dictated & pronounced in the open court on 8-5-2009) X X X X Extracts X X X X X X X X Extracts X X X X
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