2010 (2) TMI 1136 - HC - Central Excise

Interpretation of Deemed Exports & Export Clearances in Gujarat High Court Decision

COMMR. OF C. EX. & CUS., SURAT-II Versus SABNAM SYNTHETICS LTD.

The Gujarat High Court considered the interpretation of deemed exports under the Exim Policy 1997-2002 and the Central Excise Act, particularly in ... Pre-deposit - Interpretation of statute - deemed exports - scope of Export - Section 2(18) of Customs Act, 1962 - Held that:- The Tribunal observed that since the issue in dispute was, as to whether it is only actual or physical exports, or even deemed export can be taken into account. The pre-deposit of duty was required to be waived and appeals itself are required to be disposed of with the consent of the parties. The Tribunal, further, observed that in the case of Ginni International Ltd. v. Commissioner of Central Excise, Jaipur [2001 (9) TMI 165 - CEGAT, COURT NO. IV, NEW DELHI], the Tribunal has held that when 100% EOU has submitted the permission to sell goods manufactured by them in DTA in accordance with para 9.9 of the Exim Policy, the Government cannot go beyond such permission and dispute the value of clearance allowed by the Competent Authority which in that case is Development Commissioner. There is no question of law, much less any substantial question of law arises, out of the order of the Tribunal - appeal dismissed. Issues Involved:1. Interpretation of deemed export under Exim Policy 1997-2002 and its consideration for Central Excise Act purposes.2. Permissibility of clearing goods in DTA against deemed export.3. Challenge to orders passed by Adjudicating Authority and subsequent Tribunal decision.4. Dismissal of Tax Appeal based on previous judgment.Issue 1: Interpretation of deemed export under Exim Policy and Central Excise Act:The Tax Appeal before the Gujarat High Court involved the interpretation of deemed exports under the Exim Policy 1997-2002 and its relevance for the Central Excise Act. The Commissioner of Central Excise & Customs, Surat-II raised the question of whether deemed exports to 100% EOU should be considered under specific sections of the Exim Policy, given the absence of a defined term 'Export' in the Exim Policy or the Central Excise Act. The Court considered this issue in light of the definition of 'Export' under Section 2(18) of the Customs Act, 1962, to determine the applicability of deemed exports in the given context.Issue 2: Permissibility of clearing goods in DTA against deemed export:Another issue raised in the appeal was whether M/s. Sabnam Synthetics could clear goods in DTA against deemed exports if deemed exports were not considered as actual exports under Notification No. 2/95 C.E., dated 4-1-1995. This question pertained to the clearance of goods in the Domestic Tariff Area (DTA) based on the status of deemed exports, highlighting the complexities in the interplay between deemed exports and actual exports under relevant notifications and policies.Issue 3: Challenge to orders and Tribunal decision:The Revenue challenged the orders passed by the Adjudicating Authority, which directed the respondent-Assessee to pay specific amounts under the Central Excise Act. Subsequently, the respondent-Assessee appealed these orders before the Customs, Excise and Gold (Control) Appellate Tribunal, Mumbai, which ruled in favor of the assessee. The Tribunal's decision emphasized the consideration of deemed exports and the authority of the Competent Authority, such as the Development Commissioner, in permitting clearance of goods. The Tribunal set aside the Adjudicating Authority's orders based on these considerations.Issue 4: Dismissal of Tax Appeal based on previous judgment:In its judgment, the Gujarat High Court noted that the issue raised in the present Tax Appeal was similar to another appeal, Tax Appeal No. 968/2008, which had been disposed of on the same day. The Court referenced the decision in Tax Appeal No. 968/2008 to conclude that no substantial question of law arose from the Tribunal's order. Based on the previous judgment and the understanding that the issues were identical, the Court dismissed the Tax Appeal, affirming the decision of the Tribunal.This detailed analysis of the judgment highlights the complex legal considerations surrounding deemed exports, their treatment under relevant policies and acts, and the judicial review of orders passed by the Adjudicating Authority and the Tribunal. The dismissal of the Tax Appeal underscores the importance of consistent legal interpretation and precedent in resolving such disputes.