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TMI Blog2014 (7) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... n addition to exports, also made DTA clearances against their advance DTA sales permission. The duty on the DTA clearances made against their advance DTA permission was paid at concessional rate prescribed under Notification No. 23/2003-C.E. The appellant applied for debonding sometime in 2009 and were allowed to be debonded by the Development Commissioner vide his letter dated 15th June 2009. The DTA sales had been made by the appellant during October 2006 to October 2007 and the same consisted of one product namely O-ring falling under sub-heading 401600 of the Central Excise Tariff which was cleared by availing the concessional rate of duty under Notification No. 23/2003-C.E. The Department was of the view that concessional rate under Notification No. 23/2003-C.E. would not be applicable in respect of the DTA sales made by the appellant against advance DTA permission for the following reasons :- (i) in terms of the conditions prescribed for the concessional rate in the Notification No. 23/2003-C.E., the concessional rate would be applicable only in respect of the goods cleared in accordance with the provisions of sub-para (a), (d), (e) or (g) of para 6.8 of the Foreign Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 2006-2007 and 2007-2008, the period during which the advances DTA clearances have been made, was negative while for DTA clearances at concessional rate of duty, the positive NFE should have been achieved. Beside this, he also observed that the product being cleared into DTA and the product exported are not similar and, therefore, this condition of the Notification is also not satisfied. 1.4 On appeal being filed to the Commissioner (Appeals) against the above order of the Additional Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 28-6-2011 upheld the Additional Commissioner's order. 1.5 Against the above order of the Commissioner (Appeals), this appeal along with stay application has been filed. 2. Heard both the sides in respect of stay application. 3. Shri J.P. Kaushik, Advocate, the learned Counsel for the appellant, pleaded that the DTA clearances had been made in accordance with the advance DTA permission given by the Development Commissioner in terms of the provisions of para (g) of Appendix 14-1H of the Handbook of Procedures, 2004-2009 EXIM Policy, that the Department had been duly informed about DTA clearances being made agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign Exchange earning. He also pleaded that the appellant have suppressed the relevant facts from the department by not disclosing that while they are selling only O-Rings falling under Chapter 40 into DTA against advance DTA sales permission, the products being exported are totally different. He, therefore, pleaded that this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the rival submissions. 6. The dispute in this case is about the rate of duty applicable on the goods cleared into DTA against advance DTA sole permission. In terms of the proviso to Section 3(1) of Central Excise Act, 1944, the duty payable on the DTA clearances made by a 100% EOU is aggregate duties of Customs chargeable on the import of like goods into India. Notification No. 23/2003-C.E. (Sl. No. 2) of the Table to the Notification prescribes a concessional rate of duty in respect of DTA clearances made by a 100% EOU, which is subject to certain conditions, as mentioned in this notification. The conditions subject to which the concessional rate of duty is applicable are as under :- "(I) The goods are cleared into domestic tariff area in accordance with su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nants and By-products The entire production of EOU/EHTP/STP/BTP units shall be exported subject to the following : (a) Units, other than gems and jewellery units, may sell goods up to 50% of FOB value of exports subject to fulfilment of positive NFE on payment of concessional duties. Within the entitlement of DTA sale, the unit may sell in DTA its products similar to the goods, which are exported or expected to be exported from the units. No DTA sale at concessional duty shall be permissible in respect of motor cars, alcoholic liquors, books, tea (except instant tea), pepper and pepper products, marble and such other items as may be notified from time to time. Such DTA sale shall also not be permissible to units engaged in the activities of packaging/labelling/segregation/ refrigeration/compacting/micronisation/pulverization/granulation/conversion of monohydrate form of chemical to anhydrous form or vice versa. Sales made to a unit in SEZ shall also be taken into account for the purpose of arriving at FOB value of export by EOU provided payment for such sales are made from Foreign Exchange Account of SEZ unit. Sale to DTA would also be subject to mandatory requirement of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inished products, except pepper and pepper products and marble which are freely importable under the Policy in the DTA under intimation to the Development Commissioner against payment of full duties provided they have achieved the positive NFE. (i) In the case of units manufacturing electronics hardware and software, the NFE and DTA sale entitlement shall be reckoned separately for hardware and software. (j) In case of DTA sale of goods manufactured by EOU/EHTP/STP/BTP, where basic duty and CVD is nil, such goods may be considered as non-excisable for the purpose of payment of duty. (k) In case of new EOUs, advance DTA sale will be allowed not exceeding 50% of its estimated export for the first year except the "pharmaceutical units, where this will be based on its estimated exports in the first two years". 9. From the perusal of the above para, it will be seen that only sub-para (k) of the para 6.8 provides for the permission for advance DTA sales in case of new units. The sub-para (a), (d), (e) and (g) of para 6.8 are about normal DTA clearances of the goods being manufactured by the unit or the DTA clearances of by-products, waste and scrap. Since, the exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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