TMI Blog2019 (2) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... s ground for denial of the benefit is not sustainable. Requirement of taking prior permission from jurisdictional Customs / Central Excise authority for DTA sale of goods - Circular 12/2005-Cus. dated 4.3.2005 - Held that:- The Circular states that EOUs are not required to take permission from the jurisdictional customs/central excise authority for DTA sale of goods. The units may sell the goods on payment of duty as per the conditions and entitlements as specified in Foreign Trade Policy - the above CBEC clarification will fully apply and hence the denial of benefit will also not succeed. Denial of notification benefit also denied on the ground that the goods cleared in DTA are not similar to the goods exported by the appellant - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing housing and turbine wheel assembly and components are not similar goods. In terms of Sl. No. 2 of Notification No. 23/2003-CE dated 31.3.2003, benefit is available only if the product is made out of indigenous raw materials. Secondly, the Assistant / Deputy Commissioner of Central Excise s prior approval / satisfaction is needed for DTA clearance. Thirdly, only similar goods can be cleared in DTA and the interpretation of what are similar goods is to be based on the definition of similar goods in Customs Valuation Rules, 1988. Accordingly, show cause notice dated 8.4.2008 was issued proposing denial of concessional rate of duty in terms of Notification 23/2003-CE dated 31.3.2003 for goods cleared into DTA. In adjudication, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be remanded for consideration of the scope of the provision by the appropriate authority. He relied upon the judgment of the Hon ble Delhi High Court in the case of Greatship (India) Ltd. Vs. Union of India 2016 (338) ELT 545 (Del.). 2.4 Periodical returns have been filed and all the clearances are through proper invoices and duly accounted. Hence, even if there is non-payment, it can be only due to interpretation of the provisions. There is no evidence established to show that there is deliberate suppression with intention to evade duty by the appellant. Hence extended period cannot be invoked. 3. On the other hand, ld. AR Ms. T. Usha Devi supports the findings in the impugned order. She drew attention to para 12 of the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods are to be produced or manufactured wholly from the raw materials produced or manufactured in India. In fact, such requirement is found only in condition 3 which in any case is not sought to be availed by the appellant. This being so, the first ground for denial of the benefit is not sustainable. 5.3 Coming to the second ground, namely, requirement of taking prior permission from jurisdictional Customs / Central Excise authority for DTA sale of goods, we find that vide Circular 12/2005-Cus. dated 4.3.2005, CBEC in para 2H therein have clarified as:- 2(H). DTA Sale of Finished Goods: (i) The para 6.39.9 of the HOP as amended by the Public Notice no. 50/2004-2009 dated 24th January of the Department of Commerce presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence the denial of benefit will also not succeed. 5.4 The third ground for denial of notification benefit is that the goods cleared in DTA are not similar to the goods exported by the appellant. The adjudicating authority in para 11 of the impugned order has relied upon para 3 of Board Circular 7/2006-Cus. dated 13.1.2005 which has observed that there is no definition of similar goods . Hence to bring clarification and uniformity that the definition of similar goods would be based on the definition of similar goods as provided in the Customs Valuation (Determination of Pride of Imported Goods) Rules, 1988. The relevant portion of the Board s clarification is under:- The term 'similar goods means goods which is although no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e difference in characteristics and function of these two items, the fact remains that both of them are components of turbo charger and hence will surely fall under the broad banded term turbo charger components which is the export product as per the EOU/green card issued to the appellant by the Development Commissioner. Hence when the permission granted to appellant has not listed any specific components of a turbo charger but instead has only indicated export product as 12,50,000 nos. of turbo charger component which was even subsequently enhanced to 32,00,000 nos. of turbo charger components, the appellant cannot then be said to have caused a breach of the conditions. Both bearing housing and turbine wheel are surely component parts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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