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TMI Blog2023 (2) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 passed by the Development Commissioner and Appellate Authority respectively; and has held that the Development Commissioner could not have reviewed his own original order after the same had been fully implemented. 4. An outline of the relevant factual matrix of the present appeal may briefly be set forth as follows : 4.1 A letter of intent was issued on 12-7-1991 to the respondent for the manufacture and export of cotton yarn under 100% Export Oriented Scheme. In accordance with Government Policy, the Export Oriented Units ['EOU', for short] were also granted permission to sell the products in Domestic Tariff Areas ['DTA', for short] as per the prescribed limit. 4.2 On 6-10-1999, the respondent applied for DTA sale for April to September, 1999 under Para 9.9(b) of the EXIM Policy 1997-2002. According to the respondent, in this application, DTA sale entitlement was calculated upon consideration of both physical exports and deemed exports. Subsequently, on 26-11-1999, the Joint Commissioner granted DTA sale permission for Rs. 12,64,00,000/- to the respondent on the basis of clubbed value of physical exports and deemed exports. The respondent, therefore, availed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present respondent and that appeal was allowed on 10-11-2005 with the Tribunal finding that the permission granted by the Development Commissioner was under challenge and the proceedings by way of show cause notice had been initiated. It was not in dispute before the Tribunal that the questions relating to validity of permission had not attained finality. In the given status of record, the Tribunal remanded the matter to the Commissioner of Central Excise for re-decision 'after awaiting the proceedings on correctness of the permission granted by the Development Commissioner' and after taking note of the Tribunal's decision in the case of Ginni International Ltd. v. Commissioner of Central Excise : 2002 (139) E.L.T. 172 (Tri. - Del.). 4.7 Reverting to the show cause notice dated 16-12-2004 issued by the Development Commissioner, it is noticed that in response thereof, the respondent contended, inter alia, that the permission was granted as back as on 26-11-1999 and before issuance of the initial letter dated 5-5-2004, the unit had arranged its business according to the terms of permission; and any modification at belated stage was bad in law and in violation of the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no bearing on the quantum of DTA entitlement, which is determined with reference to physical exports. 4.9 The appeal of the respondent against the aforesaid order dated 8-6-2009 was rejected by the Appellate Authority, Ministry of Commerce and Industry by its order dated 8-9-2010 while holding, inter alia, that the supplies made against deemed exports could not be considered for calculation of DTA sale, which was to be decided with reference to physical exports of the EOU. 4.10 In challenge to the aforesaid orders dated 8-6-2009 and 8-9-2010, the respondent preferred a writ petition in the High Court that has been considered and allowed by the impugned order dated 10-3-2011. The High Court essentially proceeded to rely upon its own judgment dated 23-2-2011 in Writ Petition No. 1718 of 2003 : Hanil Era Textiles Ltd. & Anr. v. Union of India & Ors., where it was held that once the Development Commissioner had granted permission to clear the goods for DTA sales and goods were accordingly sold in DTA, the Development Commissioner could not review his own order because of absence of any such power of review. 5. Learned Counsel for the appellants has submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral of Foreign Trade by a Public Notice issued in this behalf." (Emphasis supplied) 8.1 The term "FOB value of exports" has also been used in the application format whereby deemed exports had been considered at par with physical exports. As a consequence, the respondent submitted deemed export data at the time of applying for DTA sale. Although the appellants have contended that this requirement was only for the purpose of calculation of NFEP achievement, it appears that there was no explicit distinction between deemed exports and physical exports during the application process. 9. The decision of this Court in Virlon Textile (supra) also supports the case of the respondent wherein this Court, inter alia, held as under :- "7. .....Firstly, on examination of the EXIM Policy we find that the said Policy as a rule stated that every 100% EOU was obliged to manufacture or produce from duty-free imported raw materials capital goods, etc., finished products/articles and as a rule every 100% EOU was obliged to export its entire production and earn foreign exchange. This was what was called as physical exports. However, this rule had certain exceptions. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority 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-C.E. If DTA sales against rupee were allowed the benefit of Notification No. 2/95-C.E., then DTA supplies against foreign exchange, which were on a par with physical exports, cannot be denied the same benefits and they cannot be subjected to a higher duty....." 10. In view of the above position of law emanating from Para 9.9(b) of the EXIM Policy as stood at the relevant time and the decision of this Court in Virlon Textile (supra), the very 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. 11. For what has been discussed and held hereinabove, the question as to whether the Development Commissioner could have reviewed his own order need not detain us, particularly when on the facts of the present case, we are satisfied that the impugned orders dated 8-6-2009 and 8-9- ..... 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