TMI Blog2021 (7) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... ield. The power of judicial review under Article 226 of the Constitution of India, need not be extended for the purpose of adjudication of such technical issues, more specifically, when the appeal is pending before the CESTAT and the appeal against the show cause notice is also pending before the 5th respondent, Commissioner of Central Excise. All the facts and circumstances with reference to the records are to be adjudicated and the application of the principles also must be decided by affording opportunity to the parties. This being the factum established, the respondents 4 and 5 are directed to proceed with the proceedings which all are pending before them, after hearing parties and by affording opportunity to the petitioner and take a decision and pass orders, as expeditiously as possible. Petition disposed off. - W.P.No.27387 of 2011 and M.P.Nos.1 of 2011 & 1 of 2013 - - - Dated:- 14-7-2021 - HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM For Petitioner: Mr. M. Karthikeyan For Respondents : Mr. R.M. Santhanaraman (Senior Standing Counsel) ORDER The lis on hand is filed to call for the records and quash the impugned appellate order dated 21.09.2011 passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in some cases EOU/EPZ units have been allowed DTA sale entitlement against deemed export effected under the provision of para 9.10 of the policy. As the clearances under Para 9.9(b) are on payment of concessional duties, it is possible that this DTA entitlement might have been availed of by EOU/EPZ unit, resulting in loss of revenue . Pursuant to the Notification, show cause notices were also issued. 3.The learned counsel for the writ petitioner made a submission that the writ petitioner earlier approached this Court and this Court finally permitted the petitioner to prefer an appeal and the appellate authority also has not considered these aspects. It is contended that the entire issue raised in the present Writ Petition is no more res-integra and already decided by the Customs Excise and Service Tax Appellate Tribunal (for short, CESTAT) in more than one occasion. In order to substantiate the said contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Supreme Court of India in the case of Virlon Textile Mills Limited Vs. Commissioner of Central Excise, Mumbai, reported in 2007 (211) E.L.T. 353 (S.C.). The Hon'ble Apex Court held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of notification No. 2/95-CE would stand eliminated. This would be, however, subject to the compliance of other conditions of notification No. 2/95CE. Therefore, in our view, the Tribunal had erred in relying on para 9.9(b) for limiting the benefits of exemption under notification No. 2/95-CE by imposing a new condition to the effect that the benefits would be admissible only in respect of 50% of such DTA sales against foreign exchange. Secondly, once the permission was granted by the competent authority under the Exim Policy to make DTA sales against foreign exchange, the assessee (appellant herein) was entitled to the benefit of concessional rate of duty under notification no. 2/95-CE. If DTA sales against rupee were allowed the benefit of notification No. 2/95-CE, then DTA supplies against foreign exchange, which were at par with physical exports, cannot be denied the same benefits and they cannot be subjected to a higher duty. Thirdly, once DTA sales against foreign exchange are covered by the above expression allowed to be sold in India , all issues relating to calculation of the duty payable in terms of notification No. 2/95-CE will have to be decided afresh by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent stand and pass an impugned order and on that ground, the order impugned is liable to be set aside. 5. The learned Senior Standing Counsel appearing on behalf of the 5th respondent objected the said contention by stating that the point raised is relatable to technical issue and an adjudication of facts are necessary for applying the principles laid down by the Hon'ble Apex Court in Virlon's case. Therefore, the matter is to be decided by the 5th respondent, Commissioner of Central Excise and by the 4th respondent, CESTAT. The learned Senior Standing Counsel made a submission that the proceedings pending before the 4th respondent CESTAT in File No.E284/11 is pending due to the interim stay granted by this Court. Similarly, the appeal filed against the show cause notice before the 5th respondent is also pending. In view of the fact that both the proceedings are stayed in the present Writ Petition, the appeals have not reached finality. Thus, the respondents 4 and 5 may be allowed to continue the proceedings and take a decision and pass orders. 6. This Court is of the considered opinion that the learned counsel for the petitioner articulated by stating that the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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