TMI Blog2023 (2) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of the show cause notice issued in this matter to the respondent seeking to question the permission granted after about 10 years when it had already been operated and executed, cannot be countenanced. For this reason alone, this appeal is required to be dismissed. Power to Review - HELD THAT:- The High Court has, of course, essentially set aside the order impugned as passed by the Development Commissioner for want of power of review while relying on its own decision in the case of Hanil Era [ 2011 (2) TMI 1467 - BOMBAY HIGH COURT ], wherein it was held that without the statute having conferred any such power, the order earlier passed could not have been reviewed. However, it is noticed that the said decision of the High Court was examined by this Court in the judgment [ 2013 (10) TMI 1467 - SUPREME COURT ], wherein, while leaving aside the question of power of review, this Court permitted the Ministry of Commerce and Industry to issue appropriate show cause notice. In the present case, when the orders impugned are not being sustained on merits, we would leave this question open to be examined in an appropriate case. Appeal dismissed. - Civil Appeal No. 8875 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commerce directed a letter to the Development Commissioner clarifying that Appendix 42 of the Hand Book of Procedure had been amended to only include physical export for DTA entitlement. 4.3 Later on, by a letter dated 17-2-2004, the Central Excise Authorities informed the Development Commissioner that DTA sale permission granted to the respondent was required to be reviewed because the value of deemed exports was taken into consideration while granting such permission. The respondent also received a show cause notice F. No. V(52)15-113/Adj./PIII03/138, dated 1-3-2004 demanding Central Excise duty amounting to Rs. 8,29,13,149/- for the period from 1-4-1999 to 7-7-2001, inter alia, stating that value of deemed exports cannot be taken into consideration for granting DTA sale permission. 4.4 Thereafter, on 5-5-2004, the Assistant Development Commissioner reviewed the sale permission earlier granted and decided that the unit was required to pay differential duty on the deemed exports valued at Rs. 12,64,00,000/-. This order was essentially premised on the aforesaid ground that DTA entitlement was only against physical exports and not deemed exports. 4.5 The aforesaid order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of foreign countries to general currency area and inter-State supplies. Therefore, the transaction in the nature of deemed exports was covered under FOB value of exports. It was also submitted that deemed exports were treated at par with exports for the purpose of fulfilment of other obligations of policy and, therefore, the same ought to be the treatment of DTA sales. It was also submitted that when the DTA sale was being made against foreign currency, it should be treated same as physical exports; and even in cases where deemed exports were received in Indian Rupees, it should be taken into consideration for DTA sales because no such distinction of currency was made as regards deemed exports in the Policy. 4.8 On 8-6-2009, the Development Commissioner proceeded to pass the Order-in-Original against the respondent, inter alia, relying upon the aforesaid communication of the Ministry of Commerce and Industry dated 4-4-2000 to the effect that DTA sales would be available only against physical exports. It was observed that the said clarification was pertaining to the changes made in the EXIM Policy w.e.f. 1-4-1999, and in the respondent s case, the DTA sale permission for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and physical exports at the time the DTA sale was applied for. It has also been argued that the Development Commissioner could review the earlier order granting DTA sale permission since it was an administrative order and not an adjudication order. 6. Per contra, it has been submitted by the Learned Counsel for the respondent that since the DTA clearances had already been effectuated, cancellation or modification of permission would amount to a review of order. It has been submitted that reviewing the DTA permission 10 years later would not be sustainable in terms of laches. It has also been argued that at the time of application, the respondent was entitled to DTA sale on deemed exports as well, in consonance with Para 9.9(b) of the EXIM Policy, since it provided for DTA sale up to 50% of the FOB value of exports; and physical exports were treated at par with deemed exports within the policy and the former were covered by the term FOB value of exports . Further, the Ministry s letter dated 4-4-2000 stating that DTA sale policy would only be applicable to physical exports could not be applied retrospectively. 7. Leaving aside other aspects of the matter, we may examine in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known as Other Supplies in DTA . Therefore, to put it in brief, Other Supplies in DTA was equated with physical exports which, as stated above, was the general rule for 100% EOU. In other words, the general rule was physical exports and other supplies in DTA was equated to physical exports. This equation was necessary because other supplies in DTA gave certain benefits to the economy like preservation of foreign exchange, import substitution, savings of transportation costs and to provide competitiveness and level playing field for Indian exporters. According to the Revenue, the expression occurring in the second proviso to Section 3(1), namely, allowed to be sold in India was applicable only to DTA sales against rupee and not DTA sale against foreign exchange. In this civil appeal, we are concerned with the law as it stood prior to 11-5-2001. In our view, DTA sale against foreign exchange was covered by the expression allowed to be sold in India and, therefore, such sale fell under the proviso to Section 3(1) of the 1944 Act. In the circumstances, the duty liability of the assessee (appellant herein) was required to be determined after allowing to it the benefit of Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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