TMI Blog2012 (12) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... without approval were not eligible for concessional rate – Held that:- For the period 2007 -2008, the DTA clearances made by the appellant were in excess of the permitted clearances by an amount and the same cannot be said to be in accordance with the provisions of para 6.8 of the Foreign Trade Policy and hence, would not be eligible for concessional rate of duty The period 1.4.2008 to 30.09.2008, the assessee not produced any letter from the Development Commissioner permitting the DTA clearances for this period. In absence of the Development's letter, it cannot be said that during this period the appellant had achieved positive NFE or that DTA clearances were within 50% of the FOB value of the exports. In view of this, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod i.e. for the period from 1.4.08 to 31.09.2008, the appellant made DTA clearances to the tune of Rs.70,35,376/- for which according to the department, there was no permission from the Development Commissioner. These clearances had also been made at concessional rate of duty under Notification No.23/03-CE (Sl.No.3). According to the department since these sales were not in accordance with the provisions of para 6.8 of the Foreign Trade Policy 2004-2009 inasmuch as the same were without permission from the Development Commissioner, the concessional rate of duty was not applicable. Thus, according to the department there was short payment of duty to the tune of Rs.11,85,511/- in respect of these DTA sales. 1.3 Thus, the total short payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no specific permission of the Development Commissioner for effecting DTA sales is required so long as the DTA sales are within the limit of 50% of the FOB value, that the DTA sales are in terms of para 6.8 of the period 2004-2009 Exim Policy , that just because during the period upto 31.3.2008 certain quantum of sales were in excess of the specific permission granted by the Development Commissioner and during the period from 1.4.2008 to 30.09.2008, there was no specific permission of the Development Commissioner for DTA sales, the benefit of concessional rate under notification no.23/03-CE (Sl.No.3) cannot be denied, so long as the basic conditions for the exemption i.e. achiving the positive NFE and the DTA sales being within the 50% of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed, that in view of this, the benefit of notification no.23/03-CE (SL.No.3) has been correctly denied and the duty demand has been correctly confirmed along with interest and penalty has been correctly imposed and that the appellant do not have a prima facie case and hence this is not a fit case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The admitted facts are that in respect of DTA clearances during the period of 31.3.2008, while the total value of the clearances was Rs.4,50,97,631/- ; in terms of the permission granted by the Development Commissioner, the sale could be effected only upto the value of Rs.3,79, 77,000/- and thus, the DTA sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Commissioner, Therefore, we are of the prima facie view that for 2007 -2008 period i.e. for the period upto 31.3.2008, the DTA clearances made by the appellant were in excess of the permitted clearances by an amount of Rs.71,20,105/-, and the same cannot be said to be in accordance with the provisions of para 6.8 of the Foreign Trade Policy and hence, would not be eligible for concessional rate of duty. 8. As regards, the period 1.4.2008 to 30.09.2008, the appellant not produced any letter from the Development Commissioner permitting the DTA clearances for this period. In absence of the Development's letter, it cannot be said that during this period the appellant had achieved positive NFE or that DTA clearances were within 50% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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