2010 (7) TMI 1119

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....lopment Commissioner, Vizag vide permission dated 24-8-1999 to effect DTA sales of goods valued at Rs. 59,17,991/- against deemed exports valued at Rs. 1,18,35,983/- for the quarter April, 1999 to June, 1999. DTA sales were effected by assessee during December, 1999 to February, 2000 consequent to their permission and duly discharged as follows. 1.      Cotton Grey Fabrics - 5% AV - Notification No. 20/98, dated 18-7-1998. 2.      Cotton Grey Fabrics - 12% AV - Notification No. 20/98, dated 18-7-1998. 3.      Polyester Grey Fabrics - 30% AV - Notification No. 8/97-C.E., dated 1-3-1997. 4.      Polyester Grey Fabrics - 35% AV - Not....

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....of all Cus. - 57.248%   82.52% and the differential duty worked out to Rs. 30,75,194/-. This was sought to be demanded under Rule 9(1) of Central Excise Rules, 1944 and it was further alleged that the party had contravened provisions of Rule 9(1) read with Rule 100E and Section 11A of Central Excise Act, 1944 with an intent to evade payment of duty for the clearances effected over and above permissible DTA limits. Penalties were also sought to be imposed under Rules 9(2) and 209(1)(a) & 209(1)(d) of Central Excise Rules, 1944. 3. The assessees in the written reply contested the show cause notice on various grounds. The adjudicating authority, after hearing the assessee and carefully perusing the records, came to the co....

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....n that the decision of the Tribunal in the case of Amitex Silk Mills Pvt. Ltd. v. CCE, Surat-I [2006 (194) E.L.T. 344 (Tri.-Del.)] is covering the issue wherein a majority opinion has held the value of the deemed export is not to be excluded while determining FOB value of the export in DTA sales. It is his submission that this decision in Amitex Silk Mills Pvt. Ltd. case has been upheld by the Hon'ble Supreme Court by dismissing the Civil appeal as reported in 2010 (254) E.L.T. A98. 6. We have considered the submissions made by both sides and perused the records. 7. The issue involved in this case is whether the decision of the ld. Commissioner as an adjudicating authority to drop the proceedings wherein the assessee had inc....

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....of DGFT/CBEC as laid down in Board Circular No. 122/95-Cus., dated 28-11-1995. There is nothing on record that such a step has been taken. In absence of such action the permission granted by Development Commissioner subsists and SCN is rendered superfluous. In addition to case laws quoted by the assessees a recent judgment of CESTAT in the case of CCE, Hyderabad v. Sanghi Spinners (I) Ltd.; reported as 2007 (209) E.L.T. 43 (T) holds that "permission granted to dispose of goods manufactured by them in DTA in terms of norms stipulated, clearances made in terms of permission granted by Development Commissioner - Customs Department cannot take view contrary to that of Development Commissioner in interpreting Exim Policy". 11. It is seen....