TaxTMI 
TaxTMI 
2021 (7) TMI 865
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....directions to 1st respondent to consider the deemed exports made by the petitioner under para 9.10 of the policy, also for the purpose of determining the petitioner's DTA entitlement. The petitioner is a manufacturer and exporter of cotton yarn and during the relevant period, the petitioner was a 100% Export Oriented Unit set up under the provisions of the Export Import policies, which were in force during the relevant point of time. As per para 9.9 of the Exim Policy 1997-2002, 100% Export Oriented Undertakings (for short, EOUs) are permitted to clear the manufactured goods in Domestic Tariff Area (DTA-within the country), to an extent of 50% of the FOB value of exports made by them, subject to fulfillment of minimum Net Foreign Exchan....
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.... value of exports (i.e., physical export only) it appears that in some cases EOU/EPZ units have been allowed DTA sale entitlement against deemed export effected under the provision of para 9.10 of the policy. As the clearances under Para 9.9(b) are on payment of concessional duties, it is possible that this DTA entitlement might have been availed of by EOU/EPZ unit, resulting in loss of revenue". Pursuant to the Notification, show cause notices were also issued. 3.The learned counsel for the writ petitioner made a submission that the writ petitioner earlier approached this Court and this Court finally permitted the petitioner to prefer an appeal and the appellate authority also has not considered these aspects. It is contended that the ent....
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....was physical exports and other supplies in DTA was equated to physical exports. This equation was necessary because other supplies in DTA gave certain benefits to the economy like preservation of foreign exchange, import substitution, savings of transportation costs and to provide competitiveness and level-playing field for Indian exporters. According to the Revenue, the expression occurring in the second proviso to Section 3(1), namely, "allowed to be sold in India" was applicable only to DTA sales against rupee and not DTA sale against foreign exchange. In this civil appeal, we are concerned with the law as it stood prior to 11.5.2001. In our view, DTA sale against foreign exchange was covered by the expression "allowed to be sold in Indi....
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....par with physical exports, cannot be denied the same benefits and they cannot be subjected to a higher duty. Thirdly, once DTA sales against foreign exchange are covered by the above expression "allowed to be sold in India", all issues relating to calculation of the duty payable in terms of notification No. 2/95-CE will have to be decided afresh by the adjudicating authority and accordingly, we hereby remand the matter back to the Commissioner for calculating the duties payable by the assessee in terms of notification No. 2/95. The Commissioner will calculate the duties accordingly as hereinabove mentioned. Lastly, we are of the view that there is no fundamental difference, as far as the exemption notification No. 2/95-CE is concerned, betw....
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....s case. The order of CESTAT was confirmed by the Hon'ble Supreme Court and thus, the precedent laid down in Virlon's case became final. The learned counsel drawn the attention of this Court with reference to many other subsequent judgments, on the same line, and contended that the principle laid down by the Hon'ble Apex Court in Virlon's Case is still being followed by CESTAT and other Courts across the Country and therefore, there is no reason for the respondents to take a different stand and pass an impugned order and on that ground, the order impugned is liable to be set aside. 5. The learned Senior Standing Counsel appearing on behalf of the 5th respondent objected the said contention by stating that the point raised is....
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....med export also as per the policy and thus, the claim of the petitioner is to be allowed. With reference to the Exim Policy, as well as circulars issued by the Ministry of Commerce and Ministry of Finance and the business transactions, as well as the nature of benefits claimed, involves an adjudication of technical points. Such technical points with reference to the business transactions cannot be adjudicated in a writ proceedings under Article 226 of the Constitution of India. It requires examination of certain records as well as the policy decisions, which all are prevailing during the relevant point of time, more specifically, for the purpose of extending the benefits. Thus, it would be preferable, such issues are decided by the 5th resp....