TMI Blog2003 (7) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Appellant is a 100% Export-Oriented Undertaking approved to manufacture and export soles, heels, tops lifts and emblems; that Para 9.10(b) of the EXIM Policy provides that supplies from 100% Export-Oriented Undertaking effected into D.T.A. against payment in foreign exchange shall be counted towards fulfilment of export performance; that the Appellants had supplied goods into DTA against payment in foreign exchange on payment of full Central Excise duty and such supplies were counted towards fulfilment of export performance and were considered as export for all purposes by the Appellants; that in accordance with the law and procedure prescribed in the EXIM Policy read with Handbook of Procedures, the Development Commissioner, NOI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al exports; that the Tribunal observed that "If the Revenue is of the view that the value of the deemed exports should not have been taken into consideration for arriving at the value of the goods to be allowed to be sold in the DTA, the matter should have been taken up with the Development Commissioner who had initially accorded the permission to the Appellant." He also relied upon the decision in the case of Virlon Textile Mills v. CCE, Mumbai [2002 (139) E.L.T. 371 (Tribunal) = 2002 (50) RLT 349 (CEGAT)] wherein the Tribunal had held that the supplies made by the Appellants in domestic tariff area against the payment in foreign exchange will be deemed, for the purpose of Para 9.9, to have been exported. He, further, said that these decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the submissions of both the sides. Notification No. 2/95-C.E., dated 4-1-95 provides concessional rate of duty of excise in respect of excisable goods produced or manufactured in a 100% Export-Oriented Undertaking and allowed to be sold in India in accordance with the provisions of sub-paragraphs (a), (b), (c) and (d) of Paragraph 9.9 or of Paragraph 9.20 of the Export and Import Policy 1997-2002. As per paragraph 9.9(b) of the EXIM Policy, DTA sale up to 50% of the FOB value of exports may be made subject to payment of applicable duties and fulfilment of minimum NFEP prescribed in Appendix 1 of the Policy. As per Paragraph 9.10 of the Policy, supplies effected in DTA against payment in foreign exchange shall be counted towards the fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question about the authority of Development Commissioner to determine the extent of DTA sale in the case of Ginni International Ltd. (supra). The Tribunal was of the view that once the Development Commissioner has allowed the appellants permission to sell the goods up to a fixed value in the DTA, the Revenue cannot disallow clearance and demand Central Excise duty on the ground that the entitlement was required to be restricted to 50% of the FOB value of physical exports. Following the decisions in Ginni International and Virlon Textile Mills, the Appellate Tribunal in the case of Morgaon Tetronics Ltd. allowed the Appeal filed by the Appellants against the Adjudication Order by which the Commissioner has confirmed the demand of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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