TMI Blog2018 (8) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. Therefore, the appellant themselves treated CD/ CD-R and Stamper as a different goods. Now their stand that both are similar goods is contrary to their own stand and on the fact - the nature of goods i.e. stamper and the CD/ CD-R are clearly distinct. The stamper is used for making the CD/ CD-R whereas CD/ CD-R is loaded CD with the media/ data, therefore, both are completely distinct products. In the present case, it is an advanced DTA permission with specific conditions that the appellant will fulfill the condition of export of the similar goods and same will be adjusted in the future entitlements, therefore, in failure to comply with the said condition, the benefit of the said permission of the Development Commissioner is not available to the appellant. Extended period of limitation - Held that:- The appellant themselves opted for advanced DTA permission subject to condition that they will fulfill the condition of export in future and they themselves taken the extension for fulfilling the condition which has been extended upto 31.05.2004 by the Development Commissioner and as per letter dated 28.03.2003 the Development Commissioner allowed the two years from 06.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/95-CE dated 04.01.1995, Notification No. 23/2003-CE dated 31.03.2003. It was noticed that though the appellant cleared stamper for CD in domestic tariff area on concessional rate of duty which is available only on the condition that the DTA clearance should be maximum of 50% of physical export during the relevant period in terms of paragraph 6.8 (b) of Export Import Policy 2002-2007 and paragraph 6.8(a) of Foreign Trade Policy 2004-2009. The appellant though cleared the stamper for CD in domestic tariff area but they have not exported the said goods during the relevant period. Therefore, they were liable for payment of duty at normal rate. Accordingly, SCN was issued which was culminated in the adjudication order whereby the demand of differential duty was confirmed. The appellant filed appeal before Commissioner (Appeals) which came to be rejected. Hence, the present appeal. 2. Sh. Aditya Tripathi, Ld. Counsel and Sh. S. Bissa Ld. Advocate appeared for the appellant. Sh. Tripathi submits that there is no dispute that the appellant have been exporting the goods namely, CD/CD-R. The stamper for CD is a similar product therefore, the criteria of 50% of FOB value should be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and it was further allowed to be fulfilled the criteria of export of stamper for another two years, therefore, during the said period, no SCN could have been issued. SCN was issued finally when the deadline of compliance of the export condition was over, therefore, SCN is not time bar. 4. We have carefully considered the submission made by both the sides and perused the records. We find that the appellant themselves treated both types of goods i.e. Stamper (Mother DVD) and CD/ CD-R as different goods and for that reason only they have obtained the permission for clearance of 50% of stamper in the DTA market vide development Commissioner s Letter dated 20.12.2002, the said permission carrying the clear condition of adjustment of facility against future entitlements. Thereafter, when the appellant could not made export of stamper the 50% of FOB value for DTA clearance was not complied with. The Development Commissioner has given further extension upto November 2003 vide its letter dated 20/21.03.2003. The Development Commissioner vide letter dated 24.11.2003 further extended the period upto 31.05.2004. All the letters of development Commissioner are scanned below: ---------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s letter may be kept attached with the original Advance DTA sale permission dated 20.12.2002. Yours faithfully, -sd- (Thomas Kurian) Deputy Development Commissioner Kandla Special Economic Zone ------------------------------------------------------------------------------- The above permissions makes it clear that since the appellant could not have adjusted the facility of DTA clearance against export of CD/ CD-R they kept on taking extension for that purpose from the Development Commissioner. Therefore, the appellant themselves treated CD/ CD-R and Stamper as a different goods. Now their stand that both are similar goods is contrary to their own stand and on the fact. We find that the nature of goods i.e. stamper and the CD/ CD-R are clearly distinct. The stamper is used for making the CD/ CD-R whereas CD/ CD-R is loaded CD with the media/ data, therefore, both are completely distinct products. As regard the judgment relied upon by the appellant in the case of Wood Crafts (supra), we find that the product involved was Blockboard and laminated wood and it was held by the Apex Court that both are similar product. Block Board and laminated wood are sim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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