TMI Blog2010 (1) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority, who shall consider in respect of each item the eligibility in DTA and also which meaning of “similar goods” to be adopted - appeal allowed by way of remand. - E/1290/2009 - A/47/2010-WZB/AHD - Dated:- 5-1-2010 - Shri B.S.V. Murthy and Ashok Jindal, JJ. Shri P.M. Dave, Advocate, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. ORDER Appellant is 100% EOU engaged in the manufacture of agro chemicals and S.O. Dyes. In addition to exports the appellants also are clearing the some of their production in the Domestic Tariff Area, after obtaining permission of the Development Commissioner and availing the benefit of Notification No. 23/2003-C.E., dated 31-3-2003 as amended, which provides f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of 50% of the value of exports only. Department has taken stand that for the purpose of understanding similarity, reliance is to be placed on the definition of similar goods available in Customs Valuation Rules in the absence of any definition available in the Central Excise Rules or in the Notification. He submitted that for this purpose department has relied upon the Circular issued by the Board in 2008. In fact, the Circular issued by Board in 2008 was issued with a different purpose and took a liberal view for DTA clearances of similar goods permitted under exemption Notification. We find that the Circular observed that limited to 50% is required to be taken into consideration for the total quantity and in case of individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant and reliance of the department on definition of similar goods in Customs Valuation Rules for the purpose of determination of eligibility for clearance to DTA is totally wrong and is not in accordance with the law. 3. Learned DR on the other hand submitted that the department s case is based upon the statement of Shri Manohar Maheshwari, Dy. General Manager (Commercial), wherein he had indicated that VAT Dyes, Solvent Dyes and OBA Dyes are different from each other and each category of dyes, namely VAT dyes, OBA or Solvent dyes can be considered as similar. As regards agro-chemicals, Shri Manohar Maheshwari stated that each product is suitable for a particular type of crop, soil condition and weather conditions etc. and therefore, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notification or not. Since the condition of the Notification are known to the officer as well as the appellants. When all available information is submitted, if the departmental officers choose not to take any action under the Notification, unless the department is able to show that in the return or in the declaration made by the appellants there were any omissions or commissions which would have prevented, the officer to find out the correct case, extended period can not be invoked. In this case no evidence has been brought out to show that return/documents/declarations were incomplete or facts were suppressed or mis-diclared in the order. Further, it was also submitted that invoices need not have been given by the appellant and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the fact that there is no examination of the goods in question which have been cleared in the DTA in terms of definition of similarity. In our opinion, in such cases, there has to be examination in respect of each product to show that this product is not similar to the one exported and why benefit of notification is not available to this particular product. In the absence of clear finding in respect of each product, we consider the order would be incomplete. As already observed by us in respect of dyes, there seems to be clarity in view of the fact that demand shown under the heading VAT dyes would give an impression that department has accepted that VAT dyes, OBA and solvent dyes form distinct categories. There is no finding as regards ..... X X X X Extracts X X X X X X X X Extracts X X X X
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