TMI Blog2009 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... vering four show cause notices as detailed below : Sl. No. SCN date O-I-O No. date Period involved Duty confirmed (Rs.) Fine imposed (Rs.) Penalty imposed (Rs.) 1. 18-9-06 08-2007-C dated 31-12-07 5/05 to 6/06 8,08,68,734 13,00,000 8,08,68,734 2. 25-7-07 05-07/2008-C dated 29-2-08 7-06 to 21-8-06 3,97,71,133 Nil 3,97,71,133 3. 5-11-07 22-8-06 to 18-10-06 4. 6-11-07 19-10-06 to 2/07 5. Total 12,06,39,867 13,00,000 12,06,39,867 3. Interest under section 11AB of the Central Excise Act, 1944, has also been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they (applicants) approached the Development Commissioner for enhancing their D.T.A. entitlement by including the deemed export clearances also. Based on their application, the Development Commissioner enhanced their D.T.A entitlement by including the deemed export clearances also and in which case, all their D.T.A clearances fell within the revised entitlement. Surprisingly, vide letter dated 5-12-2008, the Development Commissioner cancelled the permission given earlier, on the ground that for determining the D.T.A sale entitlement only physical exports were to be taken into consideration and not deemed exports. 5.1 Learned Advocate further submitted that they have challenged this unilateral cancellation of the permission by the Developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wleged by the Commissioner in his O-I-O. He submitted that this deposit should be considered as sufficient compliance of Sec. 35F of the Central Excise Act, 1944, and unconditional stay should be granted in both the appeals. Any further payment would cause them undue hardship. 6. Shri A.K. Prasad, ld. Jt. CDR arguing of Revenue submitted that the case was not as simple as the applicants have made it out to be. The applicants had been unauthorisedly clearing the goods into the DTA at concessional rate of duty beyond the quantity limit permitted by the Development Commissioner. When this evasion of duty was detected by the officers of the Central Excise Department, the applicants initially took the plea that since all their final products h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Virlon Textiles Mills Ltd. v. CCE, Mumbai [2002 (139) E.L.T. 371 (T)]. 6.2 JCDR submitted that at this stage, where only the stay applications are being considered, it is sufficient for this Bench to take note of the fact that the request of the applicants for enhancing their DTA entitlement stands rejected by the Development Commissioner and that, prima facie, the case is in favour of the Revenue. 6.3 He submitted that the CESTAT and the courts have consistently held that the DGFT/Ministry of Commerce is the final authority to interpret the Foreign Trade Policy provisions and that the Customs or the Central Excise Departments cannot question the same. Thus, once the Ministry of Commerce has clarified that deemed export clearances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int CDR further submitted that the clarification dated 26-12-2008 from the Ministry of Commerce has noted the Supreme Court decision in the case of Virlon Textiles. 6.6 As regards the plea of undue hardship, the learned Joint CDR filed a copy of the report dated 5-5-2008 of the Jurisdictional Superintendent of Central Excise of the applicants, wherein it has been brought out that the applicants had a profit of Rs. 3.23 crores before interest and depreciation, cash and bank balance of Rs. 2.06 crores and inventories of Rs. 44.23 crores, as per the balance sheet of the applicants for the year ended 31-3-2007 (at that time the balance sheet of the year 07-08 had not yet been prepared). The learned Joint CDR submitted that the Hon ble CESTAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (S.C.)], etc. The Tribunal, in the case of Reliance Silicons (India) Ltd. v. Commissioner of Central Excise, Raigad, [2009 (238) E.L.T. 78 (T)] vide Stay Order No. S/158/09/CSTB/C-II dated 3-4-2009, has ordered them to pre-deposit 50% of the duty demand of Rs. 11.91 crores even when they were already before the BIFR. 10. Keeping the above aspects in mind, we direct the applicants to pre-deposit an amount of Rs. 4 crores (Rupees Four Crores only) towards duty in respect of Appeal No. E/283/08-MUM within eight weeks and report compliance on 15-7-09. On depositing the said amount within the stipulated period, the pre-deposit of the balance amount of duty, interest and penalty will stand waived and recovery thereof stayed pending disposal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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