TMI Blog2009 (6) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... f Industrial Assistance, Ministry of Industry, specifically permitted the appellant EOU to sell the entire production of shrimp feed within the country and the unit was not allowed to export the same. The Development Commissioner considered the DTA sales for the purpose of discharging export obligation without the EOU making physical exports - the EOU cannot be denied the benefit of Not. No. 2/95-C.E. as the appellant was allowed to sell the entire production of shrimp feed within the country, as the DGFT authorities have considered the DTA clearances as export clearances and issued EODC to appellant. A legitimate benefit extended under a Notification cannot be denied to the EOU for no fault of theirs. The sale of shrimp feed by the EOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95-C.E., dated 4-1-95 inasmuch as it had not fulfilled the condition that DTA sales should not exceed 50% of the FOB value of exports made by the EOU. After due process of law, the Commissioner found that the EOU had failed to fulfill the above condition to qualify for the concessional rate of 50% of the aggregate of the duties of customs leviable on like goods if imported into India. The EOU was, therefore, found to have paid duty @ 2.75% ad valorem instead of @ 5.5% BCD payable on like goods imported from outside India. Accordingly, he confirmed demand of duty of Rs. 1,73,70,206/- due on clearances of shrimp feed manufactured and cleared during the period 1-3-1999 to 31-8-1999 under Rule 9(2) of Central Excise Rules 1944, along with appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated NFEP as per the relevant EXIM Policy. This was pursuant to the decision of the Grievance Redressal Committee recommending that the DTA sales of the unit be taken into account for the purpose of discharging export obligation as well as achievement of NFEP as provided in the EXIM Policy. 3.1 The main ground taken by the appellant to assail the impugned demand is based on the above decision of the licensing authority to treat the domestic clearances as the clearances for export whereby the EOU was held to have fulfilled its export obligation and achieved the requisite NFEP. It is argued that in the above circumstances, it should be held that the EOU had satisfied the condition of the Not. 2/95-C.E. and the impugned clearances entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d exports as certified by the proper authorities should be taken into consideration for determining the eligibility to Notification 2/95-C.E. In the peculiar facts of the case, the finding that the impugned clearances had exceeded the FOB value of goods exported was not sustainable. The departmental authorities did not have jurisdiction to question the Policy formulated by the Ministry of Commerce. The said Ministry had categorically clarified that the EOU had fulfilled the export obligation and had achieved the NFEP prescribed. The impugned demand was, therefore, not sustainable. 4. On 4-6-09, on conclusion of hearing in the above case, the Bench pronounced gist of the order in the open court that it allowed the appeal filed by CPA. Late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be restricted to 50% of the FOB value of physical exports. If the Revenue is of the view that the value of deemed exports should not be taken into consideration for arriving at the value of goods to be allowed to be sold in the DTA, the matter should have been taken up with the Development Commissioner, who had initially accorded the permission to the appellants. 6. We have also heard the learned JCDR for the Revenue who reiterated the findings contained in the impugned order. 7. We have carefully considered the rival submissions. We have also gone through the records. The impugned order denied the appellant EOU benefit of Not. No. 2/95-C.E. for the reason that the DTA clearances made by it during the material period were in excess of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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