TaxTMI 
TaxTMI 
2015 (10) TMI 95
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....nefit of Notification No. 2/95-C.E. is available to the appellant in respect of advance DTA sales? (ii) Whether the benefit of said Notification is to be adjusted in respect of DTA sales after taking into account the physical exports as also sales against the foreign exchange made by the appellant in terms of law declared by Hon'ble Supreme Court in the case of Virlon Textile Mills Ltd. and the Larger Bench's decision of the Tribunal in the case of Juned Bilal Menon as held by Member (Judicial)? (iii) Whether for the purposes of deciding the DTA clearance eligibility, the exports made during the year are required to be taken into consideration or the total value of exports made during the years 1996-97 to 199....
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....ber (Judicial) DIFFERENCE OF OPINION 2. This difference of opinion is listed before me for resolving differences as directed by the Hon'ble President. The differences that need to be resolved as under : (i) Whether the benefit of Notification No. 2/95-C.E. is available to the appellant in respect of advance DTA sales? (ii) Whether the benefit of said notification is to be adjusted in respect of DTA sales after taking into account the physical exports as also sales against the foreign exchange made by the appellant in terms of law declared by Hon'ble Supreme Court in the case of M/s. Virlon Textile Mills Ltd. and the Larger Bench's decision of the Tribunal in the case of Juned Bilal Me....
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....upheld as observed by Member (Technical) or the same has to be set aside on the ground that DTA clearances were with the permission of Development Commissioner as observed by Member (Judicial)? 3. Ld. Counsel, Shri S.R. Dixit appearing on behalf of the assessee would submit that they have filed an application which is numbered C/MA/Ors./ 11580/2014 for modification of the order dated 6-8-2008. 4. On perusal of the modification application and the order which is sought to be modified, I find that the order dated 6-8-2008 is an order wherein there is difference which has been recorded by the Bench. Be that as it may, it is noticed that this application is filed by the appellant on 18-3-2014. As per the provisions of Section 35C, a....
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....puted that the appellant was granted permission to sell finished goods in DTA and had received payment in convertible foreign exchange and that during the period May, 1996 to August, 1996 appellant had cleared in DTA only trial production. 5.2 He would submit that the appellant had exported goods during the years 1996-97, 1997-98 and 1998-99. 5.3 It is his submission that total value of exports therefore for all the three years is approximately Rs. 3.90 crores including the deemed exports which is cleared to DTA under convertible foreign exchange. It is his submission that at the most differential duty demand can be as per the formula considered actual/ deemed exports made by the appellant. 5.4 It is his submission that th....
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....e Hon'ble Member (Technical) and submits that there is no answer from the appellant on the point as to there being no achievement of positive NFEP or that they have discharged the export obligation. It is his submission that the export obligation having not being discharged, and the authority to hold so, has discarded the arguments made by the appellant, nothing survives in this matter and the confirmation of the demand with interest and penalties is correct as held by Hon'ble Member (Technical). 7. I have considered the submissions made at length by both sides and perused the records. 8. The entire difference of opinion that needs to be resolved by me can be decided on the fact that whether the benefit of said Notification No. ....
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....committed by him and also for the reason that they have not achieved positive NFEP. Ld. Counsel has submitted that they had achieved NFEP and tried to take me through the records vainly, as the authority who is supposed to accept the contentions of an assessee that he has complied with the export obligation or has achieved positive NFEP, is the Development Commissioner and he was not convinced by the explanations of appellant. I was informed that the order of the Development Commissioner wherein it is recorded that the appellant has not exported any goods was appealed against, and the said appeal also stands rejected. 12. On the face of such a factual matrix, wherein the appellant having not exported a single kilogram, in my considere....