TMI Blog2018 (11) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... value of exports, the issue have been settled that for calculating the 50% not only the physical exports but also the deemed exports should also be considered. Time Limitation - Held that:- Since the appellant have been supplying the goods to advance license holder by intimating to the department and the departmental officer was debiting the advacne license/ advance release order the entire facts was well within the knowledge of the Department, therefore, there is no iota of suppression or mis-declaration on the part of appellant hence, the demand for the extended period issued in the SCN dated 05.05.2009 is clearly time barred. Whether for removal of scrap in DTA for computing the 50% of FOB value of export, whether the export includes deemed exports or otherwise? - Held that:- This issue has been considered time and again in the case of Nandan Synthetics P. Ltd. vs CCE [2014 (6) TMI 128 - CESTAT AHMEDABAD], where it was held that the assessee is eligible to clear goods to Domestic Tariff Area by taking 50% of the deemed exports value as their eligibility. Appeal allowed - decided in favor of appellant. - E/10003 - 10014, 11108 - 11122/2017 - DB - A/12493-12519/2018 - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining the permission from Development Commissioner. However, there is no such condition prescribed for availing the exemption notification No. 23/2003-CE. He further, submits that para 4.1 of the FTP 2004-09 states that an Advance License is issued as a duty exemption scheme. Para 4.1.3 of the Policy states that an Advance License is issued to allow duty free import of inputs. Under para 4.1.11 of the Policy, an option is given to the holder of the advance license to source the inputs from indigenous sources including from EOU instead of importing the same. To give effect to these provisions, serial No. 22 of Notification No. 23/2003-CE dated 31.03.2003 grants exemption to the goods cleared by EOU to holders of Advance Licence. The only condition which is stipulated for such exemption is condition no. 11 which nowhere stipulates that permission of Development Commissioner is required. It is not the case of the department that condition No. 11 is not satisfied in this case. 3. He further submits that when there is no condition stipulated against serial No. 22 of the Notification of obtaining the permission of Development Commissioner, the exemption under the said Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bres 2011 (268) ELT 354 (Guj.) CCE vs Gandhi Fibres 2015 ( 3180 ELT A250 (SC) CCE vs Shilpa Copper Wires Ind. 2011 (269) ELT 17 (Guj.) Juned Bilal Menon vs CCE 2008 (221) ELT 45 (Tr. LB) 3.1 He submits that in the following judgments the law was laid down that the supplies made to advance license holders which are deemed exports are not at par with DTA sales and hence, no permission of Development Commissioner is required for such service. Om shanti Satins Ltd. 2010 (255) ELT 131 Suresh Synthetics 2013 (294) ELT 257 Jumbo Ltd. vs CCE 2005 (184) ELT 214 CCE vs Jumbo Bag ltd. 2015 (324) ELT A190 3.2 Without prejudice to the above submissions he further argued that SCN dt. 5/5/2009 was issued for the period April 2004 to March 2009 which is beyond the normal period of limitation. He submits that all the clearances were effected by producing the advance license/ advance release order before the Central Excise Authorities who made the debit entries in the same, therefore, there is no wilful misstatement or suppression of fact on the part of the appellant. Hence, the demand for the extended period is time barred. He placed reliance on the Hon ble Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition 11 of the Notification no any requirement of permission of Development Commissioner exist, therefore as per the plain reading of the Notification together with the condition, exemption is not based on any permission to be obtained from the Development Commissioner, therefore, the contention of the Revenue that the permission of Development Commissioner was not obtained in order to avail the exemption Notification No. 23/2003-CE is patently incorrect and without any basis. We agree with the submission of the Ld. Counsel that in the case of Inter-Continental (supra), the Hon ble Gujarat High Court has categorically held that the words which is not existing in any notification cannot be imported into it to interpret the exemption Notification. The said judgment was upheld by the Hon ble Supreme Court, therefore, in context with the present case also since there is no condition of Development Commissioner s Permission laid down for allowing the exemption Notification 23/03-CE, the benefit of the Notification was wrongly denied by the lower authority. It is also observed that in the appellants own case, this Tribunal in the case law reported at 2007 (211) ELT 84 clearly held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the appeals. 6. As regard appeal No. E/11108-11122/2017 (15 Appeals), the issue involved is whether for removal of scrap in DTA for computing the 50% of FOB value of export, whether the export includes deemed exports or otherwise. This issue has been considered time and again in the case of Nandan Synthetics P. Ltd. vs CCE-2015 (315) ELT 454 which was upheld by Hon ble Supreme Court reported at 2015 (319) ELT A119-SC. In this decision of the Tribunal, the following order was passed. 9. We find that in the case of Gandhi Fibers , this Bench vide order dated 11-6-2009 relying upon the judgment of Virion Textile Mills Ltd. had allowed the appeal of the assessee holding that assessee is eligible to clear goods to Domestic Tariff Area by taking 50% of the deemed exports value as their eligibility. It is noticed that this judgment of the Tribunal has attained finality in the hands of Apex Court. Since the issue is covered by the judgment of Hon ble High Court of Gujarat in the case of Gandhi Fibers and as also in the case of NBM Industries and Amitex Silk Mills Pvt. Ltd., we find that the impugned order is incorrect. 10. Reliance placed by the ld. Departmental Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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