TMI Blog2022 (5) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case. The goods other than cover and coveter glasses which fall under the current show cause notices are listed out in para-16 of the OIO. The reason stated by original authority for confirming the demand is that the appellant did not submit any conclusive technical proof to prove that the goods cleared are similar goods as envisaged in the notification. Apart from this, there is no other discussion given thereto - Commissioner (Appeals) also has reiterated that the appellant has not produced any technical proof to show that the goods are not similar . It is to be seen that appellant is authorized to manufacture precision optical components, instrument assemblies / sub-assemblies. Such authorization is given by the Secretariate of Industrial Approvals from the Department of Industrial Development under the Ministry of Industry. The goods can be cleared only when the Development Commissioner grants permission for the same - The DTA clearances are governed by para 6.8 of FTP and the appellants have obtained permission from the Development Commissioner for making such DTA clearances. The argument of the Ld. Counsel that such permission is granted only when Development Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igible for exemption under Notification No.51/96-Cus. dated 23.07.1996. (ii) Clearance of the goods not similar to goods exported and therefore it appeared that the appellant was not eligible for exemption under Notification No.23/2003-CE. (iii) For sale under Para 6.8 (h) of EXIM Policy, full rate of duty is to be paid when Customs Exemption Notifications are not applicable. (iv) Education Cess and Secondary higher Education Cess are to be paid for the second time in respect of DTA clearance and (v) The appellant did not submit a certificate signed by an authority not belong the rank of Deputy Secretary to the Govt. of India under Customs Notification No.21/2002 (as amended by Customs Notification No.20/2007) and Customs Notification No.12/2012. After due process of law, the original authority confirmed duty of Rs.4,06,05,026/- under Section 11A of Central Excise Act, 1944. The demand confirmed pertained to the second issue only and the demands pertaining to all other issues were dropped. The adjudicating authority also imposed penalty of Rs.40,60,500/- under Rule 25 of the Central Excise Rules, 2002. Aggrieved by the confirmation of demand under issue (ii) above as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above, it may be seen that benefit of the Notification is available when goods sold in DTA are in accordance with Para 6.8 of Exim Policy and when such goods are similar to goods exported. This clearance is after due satisfaction of appropriate authority mentioned therein. 2.7 DTA clearances are governed by Paragraph 6.8 of the Foreign Trade Policy (as applicable from time-to-time). During the Impugned Period, the Appellant effected sale of manufactured goods in DTA in accordance with Paragraph 6.8(a) of the Foreign Trade Policy. For ease of reference, the relevant excerpt from Paragraph 6.8(a) is reproduced hereinbelow: (a) Units, other than gems and jewellery units, may sell goods upto 50% of FOB value of exports, subject to fulfilment of positive NFE, on payment of concessional duties. Within entitlement of DTA sale, unit may sell in DTA, its products similar to goods which are exported or expected to be exported from units .. 2.8 From the above, it may be seen that DTA sale can be undertaken only upon obtaining permission from the Development Commissioner. 2.9 The Appellant is only authorized to manufacture Precision Optical Components, Instrument ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s period CESTAT order in Appellant s own case is squarely applicable. 4.1 In this regard, reliance is placed on Order-In-Original No. 29 to 46/2009 (C) dated 24.03.2009 in the Appellant s own case, passed by the Learned Commissioner of Central Excise, Puducherry. Based on the LOP and permissions granted by the Development Commissioner and after relying upon CBEC Circular No. 85/95-Cus., dated 26.07.1995, the said Order held that goods sold in DTA are similar to goods exported inasmuch as they all are Precision Optical Components . This decision was challenged by the Revenue before this Hon ble Tribunal. Thereafter, this issue was settled in favour of the Appellant in General Optics (Asia) Ltd. v. CCE 2018 (363) E.L.T. 658 (Tri-Chennai). The decision attained finality since the Department did not challenge the said Order. 4.2 It is also relevant to note that the OIO, vide paragraph 11, records that adjudication of the present case was kept in call-book and was not taken up for adjudication in light of challenge to Order-In-Original No. 29 to 46/2009 ( C ) dated 24.03.2009 before this Hon ble Tribunal. Thus, having waited so long and accepted the Order, it is submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit in quantifying the demand. Therefore, the Appellant filed an application for rectifying this clerical error vide letter dated 21.01.2019. However, no Order has been passed in this regard. 7.2 Therefore, assuming without acceding that the Appellant is not entitled to exemption under Notification 23/2003, it is prayed that the duty payable should be computed after factoring the benefit available to the Appellant under Notification No. 51/96-Cus. dated 23.07.1996. It is submitted that this Hon ble Tribunal, in the Appellant s own case in General Optics (Asia) Ltd. v. CCE 2005 (191) ELT 1192 (Tri-Chennai) held that Appellant is entitled to exemption under the said Customs Notification in respect of DTA sale. This decision was upheld by Hon ble Supreme Court in 2007 (215) ELT A102 (SC) and has thus attained finality. 7.3 In any case, as stated supra, the eligibility to exemption under the said Customs Notification has already been decided in favour of the Appellant vide the OIOs. The Department did not prefer any appeal against the OIOs. Thus, the eligibility to exemption under Notification No. 51/96-Cus. Dated 23.07.1996 has already attained finality. 8. Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and coveter glasses which fall under the current show cause notices are listed out in para-16 of the OIO. The reason stated by original authority for confirming the demand is that the appellant did not submit any conclusive technical proof to prove that the goods cleared are similar goods as envisaged in the notification. Apart from this, there is no other discussion given thereto. The Commissioner (Appeals) also has reiterated that the appellant has not produced any technical proof to show that the goods are not similar . 15. It is to be seen that appellant is authorized to manufacture precision optical components, instrument assemblies / sub-assemblies. Such authorization is given by the Secretariate of Industrial Approvals from the Department of Industrial Development under the Ministry of Industry. The goods can be cleared only when the Development Commissioner grants permission for the same. The licence or permission so granted thus makes it clear that appellants are engaged in manufacture of precision optical components / instruments, assemblies etc. The notification is available only when the goods sold in DTA are in accordance with para-6.8 of EXIM Policy and are sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond reasonable doubt by the test report got conducted on the impugned goods for the subsequent period and relied upon, as is evident from the Order-in-Original, dated 31.12.2012 (adjudicating the SCN issued for the period Feb 2011 to Jan 2012). We find that facts of the case here are in a narrower compass compared to the cases discussed as above, the difference in goods only being that of concentrated or diluted. Both of them are named ceramic colours only. Test reports indicated that they have similar composition as rightly held by the Learned Commissioner for the subsequent period. Therefore, there is no doubt that the goods exported and the goods cleared by the appellants are similar in terms of Para 6.8 of FTP. Moreover, the fact that Development Commissioner has issued permission is not denied. We hold that in view of the judgement in Novapan Industries (Supra), the Order-In-Original should hold good for the earlier period also. It is pertinent to note that the department did not bring forth any change in the circumstances or the quality of the goods exported and cleared in DTA by the appellant. We find that the department has wrongly tried to differentiate between the good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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