TMI Blog2015 (8) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... , (e) and (g) of para 6.8 does not exceed 50% of the FOB value of exports made during the financial year. Letter from Development Commissioner permitting advance DTA clearances by the appellant is also mis-leading as while it refers to the permission being granted in terms of para (g) of Appendix 14 1H of Handbook of Procedures, which pertains to advance DTA clearances, it does not mention para 6.8 (k) of the Foreign Trade Policy, which is the parent provision under which the advance DTA clearances can be given. - As the Condition No.II of the said notification could not be fulfilled by the appellant, therefore, the appellant is not entitled to claim the benefit of the notification. Consequently, the appellant is liable to pay duty. Therefore, the appellant have no case on merits. Advocate for the appellant as the Counsel himself has admitted that the appellant is not able to fulfill the Condition No.II attached to the Notification No.23/03-CE. Therefore, claiming the benefit thereof does not arise. This fact was not brought in the knowledge of the Department by the assessee by availing the benefit of the said notification. In these terms, the lower authorities have rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the provisions of sub-para (k) of para 6.8 of the Foreign Trade Policy. Sub-para (k) of para 6.8 pertains to advance DTA clearances while para (a), (d), (e) or (g) of para 6.8 pertain to the regular DTA clearances. Thus the advance DTA clearances covered by para 6.8 (k) of the Foreign Trade Policy are not covered by the Notification. (ii) For the benefit of concessional rate under Notification No. 23/2003-CE the goods cleared into DTA (other than waste, scrap or remnants) are similar to the goods exported. In this case while the DTA clearances have been made of the O-rings, the goods exported during the period of dispute were mainly striker bumpers and nut seals which were totally different item ; (iii) the appellant had failed to achieve net positive foreign exchange earning during 2006-2007 and 2007-2008, which is also a requirement under para 6.8 (a) of the Foreign Trade Policy for being eligible for DTA clearances and thus the DTA clearances cannot be said to have been made in accordance with the provisions of para 6.8 (a) of the Foreign Trade Policy. 1.2 On the above basis, a show cause notice dated 26/3/2009 was issued to the appellant for (a) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (g) of Appendix 14-1H of the Handbook of Procedures 2004-2009 are eligible for the concessional rate of duty under Notification No. 23/2003-CE, that positive NFE had been achieved by the time of debonding in 2009 and it is not necessary that during the period of making DTA sales against advances DTA permission, the NFE should be positive, that the condition of the exemption Notification regarding the DTA clearances having been made in terms of sub-para (a), (d), (e) or (g) of para 6.8 of the Foreign Trade Policy is not attracted in case of advance DTA sales made in terms of sub-para (k) of para 6.8 and as such denial of exemption on the ground that the DTA clearances were made in terms of para 6.8 (k) of the Foreign Trade Policy is not correct, that the condition in the Notification that the goods cleared into DTA must be similar to the goods exported is not applicable when the DTA clearances are made against advance DTA clearance permission under para 6.8 (k) of the Foreign Trade Policy, that in any case the duty demand is time barred, as all the relevant facts had been disclosed by the appellant to the department and, hence, extended period under proviso 11A (1) is not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in the domestic tariff area, other than scrap waste, or remnants, are similar to the goods which are exported or expected to be exported from the units during the specified period of such clearances in terms of Foreign Trade Policy ; (b) the total value of such goods being cleared under sub-paragraph (a), (d), (e) or (g) of para 6.8 of the Foreign Trade Policy into domestic tariff area from the units does not exceed 50% of the FOB value of exports made during the year [starting from 1st April of the year and ending with 31st March of the next year] by the said unit ; and (c) the balance of production of the goods which are similar to such goods under clearance into domestic tariff area, is exported out of India or disposed in domestic tariff area in terms of para 6.9 of the Foreign Trade Policy. (III) clearances of goods into domestic tariff area under paragraph (a), (d), (e) or (g) of para 6.8 of the Foreign Trade Policy shall be allowed only when the unit has achieved positive under foreign trade earning and (IV) clearance of goods into domestic tariff area under sub-para (d) of para 6.8 of the Foreign Trade Policy in excess of 5% of the FOB value of exports made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewellery units may sell up to 10% of FOB value of exports of the preceding year in DTA subject to fulfilment of positive NFE. In respect of sale of plain jewellery, the recipient shall pay concessional rate of duty as applicable to sale from nominated agencies. In respect of studded jewellery, duty shall be payable as applicable. (d) Unless specifically prohibited in the LOP, rejects within an overall limit of 50% may be sold in the Domestic Tariff Area (DTA) on payment of duties as applicable to sale under paragraph 6.8 (a) on prior intimation to the Customs authorities. Such sales shall be counted against DTA sale entitlement. Sale of rejects up to 5% of FOB value of exports shall not be subject to achievement of NFE. (e) Scrap/waste/remnants arising out of production process or in connection therewith may be sold in the DTA as per the Standard Input-Output norms modified under the Duty Exemption Scheme on payment of concessional duties as applicable within the overall ceiling of 50% of FOB value of exports. Such sales shall not, however, be subject to achievement of positive NFE. In respect of items not covered by the norms, the Development Commissioner may fix ad hoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Foreign Trade Policy, it is very clear that the goods sold into DTA against advance DTA sales permission granted under para 6.8 (k) are not covered by this notification. The fact that the advance DTA clearances in terms of para 6.8 (k) of the Foreign Trade Policy are not covered by this exemption notification is also clear from the Condition (II) (b) of the notification, according to which the total value of the goods cleared into DTA under sub-para (a), (d), (e) and (g) of para 6.8 does not exceed 50% of the FOB value of exports made during the financial year. In the case of advance DTA clearances, this condition cannot be satisfied as the advance DTA clearances are adjusted against the future DTA entitlements. We also take note of the fact that the letter from Development Commissioner permitting advance DTA clearances by the appellant is also mis-leading as while it refers to the permission being granted in terms of para (g) of Appendix 14 1H of Handbook of Procedures, which pertains to advance DTA clearances, it does not mention para 6.8 (k) of the Foreign Trade Policy, which is the parent provision under which the advance DTA clearances can be given. 10. Further, we f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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