2012 (12) TMI 584

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....ted 9.8.2005 issued by the Addl. Development Commissioner to effect DTA sales to the tune of Rs.3,7.9,77,000/- which was valid upto 31.3.2008. The appellant, however, against this permission, effected DTA sales upto 31.3.2008 of Rs.4,50,97,063/- and thus actual DTA sales were in excess of the permitted DTA sales by Rs.71,20,105/-. Since all the DTA sales had been effected by the appellant on the payment of duty at the concessional rate under Notification No.23/03-CE (Sl.No.3 of the Table) and since according to the department, DTA sales made in excess of the permitted value were not eligible for concessional rate, the department was of the view that the appellant have short paid duty to the tune of Rs.11,95,248/-in respect of the DTA cleara....

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....missioner, the Commissioner (Appeals) vide order-in-appeal dated 30.09.2010 upheld the Addl. Commissioner's order. 1.7 Against this order of the Commissioner (Appeals), this appeal has been filed along with stay application. 2. Heard both the sides in respect of stay application. 3. Shri Jatin Mahajan, ld. Counsel for the appellant, pleaded that the DTA sales during the period of dispute had been made at concessional rate of duty under Notification No.23/03-CE (Sl.No.3), that the conditions subject to which concessional rate is applicable were satisfied inasmuch as during the period of DTA sales the appellant had achieved positive net foreign exchange earning (NFE), and besides this, the DTA sales were also within 50% of the FOB va....

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....e conditions prescribed is that the DTA sales must have been made in accordance with the sub-para (a), (d), (e) and (f) of para 6.8 of the 2004-09 Exim Policy, that such permission in accordance of the provisions of the Foreign Trade Policy is given by the concerned Development Commissioner who monitors the export performance of 100% EOUs, that while during the period 31.3.2008 the appellant had made DTA sales in excess of the quantity permitted, for the period from 1.4.2008 to 30.09.2010, the appellant have made DTA clearances without any permission from the Development Commissioner whatsoever, that thus the conditions subject to which the concessional rate of duty under Notification no.23/03-CE is available has not been fulfilled, that th....

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....chieved positive NFE and thus the clearances were in accordance with the provisions under para no.6.8 of the 2004-2009 Foreign Trade Policy and as such, no permission of the Development Commissioner was required. 7. In respect of a 100% EOU, it is the Development Commissioner, who monitors the export performance and on the basis of the Export Performance and also achieving a positive NFE DTA sales are permitted. For the period till 30.03.200, there is no dispute that DTA clearances of the appellant were in excess of the DTA sales permitted by the Development Commissioner by Rs.71,20,105/-. The appellant have not produced any letter from the office of the Development Commissioner showing that for the period till 31.03.2008, the quantity o....