TaxTMI 
TaxTMI 
2009 (5) TMI 701
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.... O-I-O No. & date Period involved Duty confirmed (Rs.) Fine imposed (Rs.) Penalty imposed (Rs.) 1. 18-9-06 08-2007-C dated 31-12-07 5/05 to 6/06 8,08,68,734 13,00,000 8,08,68,734 2. 25-7-07 05-07/2008-C dated 29-2-08 7-06 to 21-8-06 3,97,71,133 Nil 3,97,71,133 3. 5-11-07 22-8-06 to 18-10-06 4. 6-11-07 19-10-06 to 2/07 5. Total 12,06,39,867 13,00,000 12,06,39,867 3. Interest under section 11AB of the Central Excise Act, 1944, has also been demanded in the above cases. 4. The brief facts of the case are that the applicants are a 100% EOU manufacturing different varieties of yarn falling under chapters 51 and 55 of the Central Excise Tariff. They do physical experts and also supply these ....
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....the deemed export clearances also and in which case, all their D.T.A clearances fell within the revised entitlement. Surprisingly, vide letter dated 5-12-2008, the Development Commissioner cancelled the permission given earlier, on the ground that for determining the D.T.A sale entitlement only physical exports were to be taken into consideration and not deemed exports. 5.1 Learned Advocate further submitted that they have challenged this unilateral cancellation of the permission by the Development Commissioner before the Nagpur Bench of the Bombay High Court in the Writ Petition No. 940/2009 filed by them. He contended that the Hon'ble High Court was not inclined to go into the merits of the case, but was inclined to refer the matter....
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....ther payment would cause them undue hardship. 6. Shri A.K. Prasad, ld. Jt. CDR arguing of Revenue submitted that the case was not as simple as the applicants have made it out to be. The applicants had been unauthorisedly clearing the goods into the DTA at concessional rate of duty beyond the quantity limit permitted by the Development Commissioner. When this evasion of duty was detected by the officers of the Central Excise Department, the applicants initially took the plea that since all their final products had been manufactured out of indigenous raw materials, they were eligible for the concessional rate of duty under Notification No. 23/2003-C.E. dated 31-3-03. Subsequently, they revised their stand to the effect that if their 'de....
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.... the fact that the request of the applicants for enhancing their DTA entitlement stands rejected by the Development Commissioner and that, prima facie, the case is in favour of the Revenue. 6.3 He submitted that the CESTAT and the courts have consistently held that the DGFT/Ministry of Commerce is the final authority to interpret the Foreign Trade Policy provisions and that the Customs or the Central Excise Departments cannot question the same. Thus, once the Ministry of Commerce has clarified that deemed export clearances cannot be equated with physical exports to determine the DTA entitlement of a EOU, their view has to be accepted. 6.4 As regards the case of M/s. Amitex Silk Mills reported in 2007 (216) E.L.T. 589 (Tri.-Ahd.)....
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.... the plea of undue hardship, the learned Joint CDR filed a copy of the report dated 5-5-2008 of the Jurisdictional Superintendent of Central Excise of the applicants, wherein it has been brought out that the applicants had a profit of Rs. 3.23 crores before interest and depreciation, cash and bank balance of Rs. 2.06 crores and inventories of Rs. 44.23 crores, as per the balance sheet of the applicants for the year ended 31-3-2007 (at that time the balance sheet of the year 07-08 had not yet been prepared). The learned Joint CDR submitted that the Hon'ble CESTAT had to strike a balance between noting the claim of undue hardship raised by the applicants and safeguarding the Government revenue, especially in view of the fact that the assets o....