TaxTMI 
TaxTMI 
2011 (3) TMI 518
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....his case relates to computation of DTA sale entitlement under para 9.9(b) of the EXIM policy which provides a limit of 50% of the FOB value of exports. It is the case of the appellants that exports under para 9.9(b) should include deemed exports whereas it is the department's contention that the expression "50% of the FOB value of exports" can only include physical exports taken out of India and not deemed exports which are essentially clearances within the country. 3. Contrary to what their names suggest, 100% Export Oriented Units (EOUs) do not export 100% of their production. Notification No. 2/95 dated 4-1-1995 initially permitted these units DTA sale upto 25% of the value of total production but the said Notification No. 2/95 was amended by Notification No. 25/99 dated 19-5-1999 to change the limit to 50% of the FOB value of exports. The notification also requires satisfaction of the jurisdictional Assistant Commissioner that the total value of goods cleared under paragraph 9.9 and 9.20 of the EXIM policy for home consumption does not exceed 50% of the FOB value of exports made during the year. As such, the notification provides for an independent determination by the ....
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....s the decision of Mumbai Bench of the Tribunal in the case of Indoworth India Ltd. v. CCE, Nagpur - 2009 (247) E.L.T. 551 where the decisions cited by the learned counsel for the appellants have been considered and distinguished. She states that though the cited decision in the case of Indoworth India (supra) is only a stay order, it clearly notes that the issue taken to the Hon'ble Supreme Court in the case of Virlon Textile Mills (supra) was not whether for the purposes of para 9.9(b) of the EXIM Policy and Notification No. 2/95, physical exports can be equated with deemed exports. She also states that Notification No. 2/95 has undergone amendment and the amended notification clearly links the DTA entitlement to free on board value of exports which was not the expression used in the Notification 8/97 considered by the Tribunal earlier in the case of Gini International (supra). 7. She further submits that on remand by the lower appellate authority in the first round in this case, the Department had taken up the matter with the Development Commissioner's office and they in their letter dated 7-1-2005 had categorically clarified that the DTA entitlement is limited to 50% of ....
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....ional duties, it is possible that this DTA entitlement might have been availed of by FOU/EPZ unit, resulting in loss of revenue. 4. In view of the above, I am directed to request you to review all the DTA clearances of EOU/EPZ units under your jurisdiction after 1-4-99 and initiate recovery proceedings in case, there is any short levy. This exercise may be done on priority and a report in the matter may be sent to the Board respectively by 25-4-2000." The letter dated 7-1-2005 from the Assistant Development Commissioner states as follows:- "With reference to para 2 of your letter it is stated that DTA sale permission granted by this office is on the basis of 25% of Ex-Factory value for the period upto March 1999 and on the basis of 50% of FOB value of physical exports from the period April 1999 onwards on the basis of application filed by the unit duly certified by the chartered accountant and bond officer. The details of DTA sales granted is given in the Annexure-I. xxxxxxx With reference to para 5 of your letter which states that "during 1999-2000, the unit had taken into account the value of deemed exports for determining the DT....
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....ny goods by land, sea or air. The definitions of "Exports" under the Customs Act, 1962 and under the Foreign Trade (Development & Regulation) Act, 1992 are similar and both mean taking goods out of India. Hence, the expression "50% free on board value of export" appearing in the EXIM policy and Notification 2/95 have to be taken as referring to physical exports out of India in the light of definitions of export given in the Foreign Trade (Development and Regulation) Act, 1992 and the Customs Act, 1962 respectively. When the plain language used in the policy and notification read with the statutory definitions is so straightforward and clear, the same requires no tools of interpretation to get at the real meaning of the expression. As such, there is no need to interpret the expression "exports" and to include clearances made within the country in its ambit whether such clearances are against foreign exchange or rupee payment. The fact that deemed exports are counted towards fulfilment of export obligation as a concession under a separate provision namely para 9.10 cannot automatically entitle the appellants to a duty concession under para 9.9 and Notification No. 2/95, when the l....