TMI Blog2009 (9) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant was liable to pay the above amount of duty on the goods (textile yarn) cleared by them to the Domestic Tariff Area (DTA) in their capacity as 100% Export Oriented Unit (EOU) during the period 1-7-1996 to 31-3-2000 (excluding 1-4-1998 to 31-3-1999). The learned Commissioner took such a view, having found that the Development Commissioner had cancelled his earlier permission for the DTA clearances. 2. After hearing the learned counsel for the appellant and the learned JCDR for the Revenue, we have found it necessary to go through the contents of the Development Commissioner s order dated 4-6-2003 whereby the earlier permission for DTA sales was cancelled. It appears from this order of the Development Commissioner that, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that such clearances had to be made under the proviso to Section 3(1) of the Central Excise Act. The learned JCDR has also pointed out that the Board s circular dated 13-2-2002 which clarified to the contra was withdrawn on 5-1-2004 by Circular No. 1/2004-Cus. It is submitted that the clarificatory circular dated 5-1-2004 had retrospective effect. Though the learned counsel has cited certain decisions to the contra, he has not been able to overcome the hurdle posed by the Tribunal s Larger Bench. The reliance placed by the counsel on Siv Industries Ltd. v. Commissioner of Central Excise Customs - 2000 (117) E.L.T. 281 (S.C.) is not found to be apposite inasmuch as, in that case, what was considered by the Apex Court was an issue r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer to a query by the Bench, the counsel submits that he is not aware of any order of stay having been passed by the High Court against the Development Commissioner s order. In this context, he has also referred to the Supreme Court s judgment in Union of India v. West Coast Paper Mills Ltd. - 2004 (164) E.L.T. 375 (S.C.) wherein the Apex Court had observed inter alia that where an appeal was filed against a final order of the Tribunal and such appeal was admitted by the Apex Court, the finality and credence of the Tribunal s order was in jeopardy. On this basis, it has been argued that, even though there is no stay order from the Hon ble High Court in W.P. No. 1718 of 2003, it should be deemed that the Development Commissioner s order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.-Mum); Bombay Hospital Trust v. Commissioner of Customs - 2005 (188) E.L.T. 374 (Tri.-LB); Seimens Limited v. Commissioner of Central Excise, Kolkata-V II - 2008 (226) E.L.T. 406 (Tri.-Kolkata) and Lady Amphthil Nurses Institutions v. Commissioner of Customs, Chennai - 2002 (150) E.L.T. 776 (Tri.-LB). The learned counsel has also cited certain decisions in support of his plea of limitation. We have considered these submissions carefully. In the case of Hanil Era Textiles Ltd. v. Commissioner - 2007 (210) E.L.T. 414 (Tri.-Mum) cited by the learned counsel, it was held, in respect of a.100% EOU, that the extended period of limitation was not invocable as no mala fides was attributable to the party who had effected DTA clearances under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had been granting permissions for DTA clearance from-time-to-time at the request of the EOU. At one point of time, the EOU challenged one of the orders, passed by the Development Commissioner and the Hon ble High Court granted interim reliefs in that writ petition. The interim orders passed by the Hon ble High Court permitted the Development Commissioner to allow the EOU to make DTA sales to such extent and in such manner as specified. On that basis, the appellant had been clearing their goods to the DTA. Eventually, the relevant permissions for DTA clearance came to be cancelled by the Development Commissioner, with the result that the present proceedings were initiated against the appellant by the department. Cancellation of DTA sale p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty either on merits or on limitation, we are constrained to direct pre-deposit. At this juncture, we shall consider the plea of financial hardships raised by the counsel. The counsel placed on record a copy of the company s annual report for the year 2007-08 and referred to para 2 of this report. Counsel submits that the company incurred net loss of Rs. 19.77 crores during 2007-08 due to appreciation in rupee value . On a perusal of the said para of the report, we find that the company had net profit of Rs. 1.95 crores as on 31-3-2007 and that the loss of Rs. 19.77 crores as on 31-3-2008 was occasioned by appreciation in rupee value. Another document submitted by the counsel is the audited financial results for the year ended 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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