2009 (6) TMI 899

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 93 and CPA was allowed to function for 10 years. CPA cleared shrimp feed of value Rs. 170,31,26,128/- during August, 1996 to February, 1999 in the Domestic Tariff Area (DTA). During the period March, 1999 to August, 1999, it cleared shrimp feed of value Rs. 63,16,44,220/- in the DTA. For these clearances to the DTA during March 1999 to August 1999, the EOU availed benefit of Notification No. 2/95-C.E., dated 4-1-1995 and paid duty @ 2.75% ad valorem working out to Rs. 1,73,70,216/-. This was 50% of 5% Basic Customs Duty payable on import of shrimp feed along with 10% surcharge on BCD as per Not. No. 2/95-C.E. The authorities held a tentative view that the assessee was not eligible for the concessional effective rate in terms of Not. No. 2/....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ng 28-2-1999 to 31-8-1999 was remanded for re-determining the liability after examining if the clearances were entitled to benefit of Notn. No. 2/95-C.E. The impugned order was passed in accordance with the above directions contained in our Final Order No. 269/2007. 3. The demand confirmed under Order-in-Original 8248/2008, dated 31-10-2008 is sought to be vacated for various grounds. The EOU was allowed by the Ministry of Commerce to sell its finished products in the DTA vide letter dated 1st May, 2006. The Office of the Development Commissioner, Madras Export Processing Zone had informed the appellant that during the period of its operation as EOU from 1996-1997 to 2002-03, it had discharged its export obligation and achieved the stipula....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Chennai)] (iii) Kurt-O-John Shoe Components (India) Pvt. Ltd. v. Commissioner [2003 (158) E.L.T. 300]  As per these authorities, if the DTA clearances were also treated under the Policy as clearances for export, the benefit of Notification 2/95-C.E. could not be denied on the ground that there was no physical exports to the extent of the value fixed for availing the benefit of Notification 2/95-C.E. The Govt. had prohibited export of shrimp feed so that the domestic need for the same would be met and foreign exchange could be saved. This was the rationale behind the Govt. policy in considering the DTA clearances for discharge of export obligation of the EOU. DTA clearances were deemed exports. The Apex Court had categorically held th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he order. 5. During hearing, the assessee had relied on the judgment of the Apex Court in the case of Virlon Textile Mills Ltd. (supra) and had argued that benefit of Not. No. 2/95-C.E. could not be limited to 50% of the FOB value of exports. It was pointed out that the Hon'ble Apex Court had held that this condition could not apply to deemed exports. In the instant case, the assessee had also relied on the decision of the Tribunal in the Ginni International [2002 (139) E.L.T. 172 (T)] wherein it was held that "once the Development Commissioner has allowed them the permission to sell the goods upto a fixed value in the DTA, the Revenue cannot disallow the clearance and demand Central Excise Duty on the ground that the entitlement was requi....