TMI Blog2017 (11) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty and if the prior permission is not taken, without permission, the export will not be done and locally goods will be disposed of. Clause 9.9 is to be read as intimation subject to proviso they have to take permission of the competent authority. Appeal dismissed - decided against assessee. - D. B. Central/Excise Appeal No. 43 / 2008 - - - Dated:- 20-9-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Sameer Jain For the Respondent : Mr. Anuroop Singhi JUDGMENT 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the Department reversing the view taken by CIT (A) (Annex.2) dated 26.5.2005. 2. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid on waste and scrap which amounted to duty to the tune of ₹ 286447/-, 38241/- and 28546/- respectively. Pursuant to search, a show cause notice dated 22.6.2001 was issued after recording statements u/s 14 of the Central Excise Act, wherein it was admitted that appellant has deposited the disputed amount voluntarily prior to issuance of show cause notice, but still demand u/s 11A and penalty u/s 11AC were demanded. 4. Counsel for the appellant pointed out provisions of Section 3(1) of the Central Excise Act and has taken us through the order of AO wherein the AO observed as under: (iv) The assessee have not violated the provisions of para 9.9(c) of Import Export Policy as well as para 9.20,9.23, and 9.24 of the Hand Book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11AB ibid. is demandable in this case. 6. Assessee s plea, that clearance of waste scrap was in normal course and after paying the duty as per notification No. 2/95-CE dated 4.1.95, is not acceptable as they had not obtained any permission for such clearance from the Development Commissioner under sub para (a) of the 9.9 of EXIM Policy. Therefore, benefit of notification No. 2/95-CE dated 4.1.95 is not available to them. Permission of the Development Commissioner is essential to be eligible to avail the benefit of this notification. 5. He has also contended with regard to the finding which has been given by the Commissioner (Appeals-I) after the remand which reads as under: 2. Brief facts of the Appeal are that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermission granted cannot come under the Section 3(1) of the Central Excise Act 1944- so long as on 100% EOU continues as an EOU it will be within the proviso to section 3(1) ibid Mere violation of the permission in the matter of sale to DTA will not take it outside the proviso. 5.1 He contended that in view of EXIM policy 9.9 clause (b) which reads as under:- (b) DTA sale upto 50% of the FOB value of exports may be made subject to payment of applicable duties and fulfillment of minimum NFEP prescribed in appendix 1 of the Policy. In the case of EOU/EPZ units in toys, agriculture, including agro-processing, acquaculture, animal husbandry, biotechno-logy, floriculture, horticulture, poultry, viticulture and sericulture such sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % duty payment and he has paid 25%, he should be allowed exemption being 100% export oriented unit and he should be allowed to take goods which is on retraction being not of export quality for the disposal in the local area. 5.4 However counsel for the respondent contended that the tribunal while considering the case held as under: Since admittedly, no permission was obtained, and the goods were not allowed to be sold in India, as contemplated by the provisions of the Act, rules and the EXIM Policy, the benefit of the said notification, which was available only in cases where the goods were allowed to be sold was not available to the respondent. There is also no substance in the contention that there is no challenge against the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed only when the unit has fulfilled the minimum Net Foreign Exchange Earning as a Percentage of Exports (NFEP) prescribed in Appendix-I of the Export and Import Policy: Provided also that the clearance of goods for home consumption under paragraph 6.8(a) in excess of 50% of Free on Board value of exports made by the said unit during the year (starting from 1st April of the year and ending with 31st March of the next year) shall be allowed only when the unit has fulfilled the minimum Net Foreign Exchange Earning as a Percentage of Exports (NFEP) prescribed in Appendix I of the said Policy. 5.6 It is contended that letter dated 2.6.98 is much prior to inspection which was carried out on three dates which are given in the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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