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TMI Blog2024 (10) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... l was admitted on the following substantial questions of law by this Court by order dated 18.06.2024: "a) Whether the Hon'ble CESTAT, Bangalore is justified in dismissing the appeal filed by revenue against order passed by Commissioner of Central Excise and Customs; without going into aspect whether the Development Commissioner is justified in going beyond the purview of Para 9.24 of Hand Book of Procedure 1997-2002 as per which "an EOU may bunch the product manufactured by it for the purpose of DTA sale within the six digit H.S. Code". The H.S. code of the items cleared by the Respondents are 5205.11 and 5509.99 for Cotton Yarn and Man-made Yarn respectively; and b) CESTAT is correct in upholding the order as above without going into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six digit HS Code". This department interpreting these words, have contended that the products Cotton Yarn, Poly Cotton Yarn, Poly Viscose Yarn and Polyester Yarn, which are listed in the HS Code as 5205.11, 5509.99, 5509.99 and 5509.99 respectively, cannot be bunched, since these fall under different HS Codes. It is observed that, the DTA clearances, of even these products, Poly Cotton Yarn, Poly Viscose Yarn and Polyester Yarn, falling under the same HS Code 5509.99, total to 55.742% of the production, far exceeding the allowed 25% and also exceeds the additional 15% allowed. Only when, the DTA clearances of all the products including Cotton Yarn (HS Code 5205.11) are totaled then the overall DTA clearances are within the prescribed limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also incorrect, for bolstering said submission, Sri Dominic Fernandes, learned counsel for the appellant firstly submitted that the decision of exemption of April, 1998 was not retrospective in nature and does not cover the entire period retrospectively. Secondly, the larger period was covered within existing para No.9.24, wherein, the fulfillment of six digit was an essential requirement. 5. The main reason for non receipt of order in favour of revenue was that the Competent Authority was the Development Commissioner, who confined requirements of Revenue by taking some view and treated the aforesaid items as single item of 'Spun Yarn Cotton, Synthetic and Blends'. The said Authority had not agreed with the contention of the Department reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o had initially accorded the permission to the Appellants. ... ...we are of the view that once the Appellants had submitted the permission to sell the goods manufactured by them in the DTA under and in accordance with paragraph 9.9 of the Export-Import Policy, 1997-2002, the Revenue cannot go beyond the permission and dispute the value of clearance allowed by the Competent Authority in this case Development Commissioner, NEPS, Noida. It is not the case of the Revenue that the demand of duty has been confirmed for not complying with any other condition of the Notification No.8/97-C.E." (Emphasis Supplied) 8. It was pointed out that this order was unsuccessfully challenged by the revenue before the Apex Court and Apex Court dismissed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s decision/stand. 13. In view of judgment in the case of Ginni International Ltd. (cited supra), which got the stamp of approval from the Apex Court coupled with the ratio decidendi in the case of Virlon Textile Mills Ltd (cited supra), it can be safely held that the revenue cannot go beyond or behind the decision of the Development Commissioner. We are unable to read any such power in Section 3 (1) of the Central Excise Act, 1944 and Rule 100 (A) of Central Excise Rules, 1944, which were relied upon by the learned counsel for the appellant. Thus, we find no reason to interfere in this appeal. The appeal fails and is hereby dismissed. 14. There shall be no order as to costs. Miscellaneous applications, if any pending shall stand closed. X X X X Extracts X X X X X X X X Extracts X X X X
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