TMI Blog2015 (10) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... advance for adjustment against exports to be undertaken in future – Therefore, appellant was not eligible to avail benefits of Notification No. 2/95-C.E. – In view of majority decision – Appeal rejected – Decided against Assesse. - C/408/2007 - Final Order No. A/11899/2014-WZB/AHD - Dated:- 11-11-2014 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Third Member on reference : Shri M.V. Ravindran, Member (J) Shri S.R. Dixit, Advocate, for the Appellant. ORDER [Order per : Archana Wadhwa, Member (J)]. - In terms of the Ahmedabad High Court s order dated 26-6-2012 directing the Tribunal to re-formulate the point of differences between two members, the following points of differences are being re-formulated :- (i) Whether the benefit of Notification No. 2/95-C.E. is available to the appellant in respect of advance DTA sales? (ii) Whether the benefit of said Notification is to be adjusted in respect of DTA sales after taking into account the physical exports as also sales against the foreign exchange made by the appellant in terms of law declared by Hon ble Supreme Court in the case of Virlon Textile Mills Ltd. and the Larger Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Virlon Textile Mills Ltd. and the Larger Bench s decision of the Tribunal in the case of Juned Bilal Menon as held by Member (Judicial)? (iii) Whether for the purposes of deciding the DTA clearances eligibility, the exports made during the year are required to be taken into consideration or the total value of exports made during the years 1996-97 to 1998-99 is required to be considered? (iv) Whether in the facts and circumstances of the case, it has to be held that DTA permission granted by the Development Commissioner was not withdrawn vide his subsequent order which only imposed penalty of ₹ 5,00,000/- on the appellant? (v) Whether the DTA clearance permission granted by the Development Commissioner and the appellant having cleared the goods in terms of the said permission have to be held as having been cleared in terms of Notification No. 2/95 or not? (vi) Whether the show cause notice (SCN) issued by the Development Commissioner was only for imposition of penalty or the same has to be interpreted as withdrawing the advance DTA permission granted by him? (vii) Whether the benefit of Notification No. 83/90-Cus., dated 20-3-1990 has to be rejected o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication No. 2/95-C.E. at material time permitted deemed exports value to be included while computing FOB value of exports. (iv) it is undisputed that the appellant was granted permission to sell finished goods in DTA and had received payment in convertible foreign exchange and that during the period May, 1996 to August, 1996 appellant had cleared in DTA only trial production. 5.2 He would submit that the appellant had exported goods during the years 1996-97, 1997-98 and 1998-99. 5.3 It is his submission that total value of exports therefore for all the three years is approximately ₹ 3.90 crores including the deemed exports which is cleared to DTA under convertible foreign exchange. It is his submission that at the most differential duty demand can be as per the formula considered actual/ deemed exports made by the appellant. 5.4 It is his submission that the issue stands decided as to that clearances which qualify as deemed export are required to be taken into consideration towards fulfilment of export obligation/NFEP achievement by the following case laws : (i) Virlon Textile Mills Ltd. - 2007 (211) E.L.T. 353 (S.C.), (ii) Juned Bilal Menon - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u of the various concessions granted to him. 10. In pursuance of such concessions granted, appellant imported various materials on which Customs Duty was foregone. 11. On this factual matrix, I find that during the year 1996-97 to 1998-99, the appellant being an 100% EOU did not effect any exports. The authority who can confirm whether the appellant has abided by the undertaking given by him is a Development Commissioner, who keeps a record of exports made by the appellant. In the case in hand, the Development Commissioner, as rightly pointed out by the Departmental Representative, and recorded by the Hon ble Member (Technical), has held that the appellant has not exported a single kilo of finished products, which was contrary to the permissions granted to him as an 100% EOU. It is also noticed that the Development Commissioner has penalized the appellant for non-fulfilment of the export obligation committed by him and also for the reason that they have not achieved positive NFEP. Ld. Counsel has submitted that they had achieved NFEP and tried to take me through the records vainly, as the authority who is supposed to accept the contentions of an assessee that he has complied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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