TaxTMI 
TaxTMI 
2022 (5) TMI 982
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....ign Trade Policy (FTP) for the year 2009-2014 which was in force from time to time. They were served with 15 show cause notices for the periods from May 2008 to June 2017 proposing to demand the total differential duty of Rs.8,55,74,670/-. There were five issues involved in these noticees - (i) It appeared that the appellant had exported goods to DTA exceeding the limit of 50% of on board value of exports and thus they were not eligible for exemption under Notification No.51/96-Cus. dated 23.07.1996. (ii) Clearance of the goods not similar to goods exported and therefore it appeared that the appellant was not eligible for exemption under Notification No.23/2003-CE. (iii) For sale under Para 6.8 (h) of EXIM Policy, full rate of duty is to be paid when Customs Exemption Notifications are not applicable. (iv) Education Cess and Secondary higher Education Cess are to be paid for the second time in respect of DTA clearance and (v) The appellant did not submit a certificate signed by an authority not belong the rank of Deputy Secretary to the Govt. of India under Customs Notification No.21/2002 (as amended by Customs Notification No.20/2007) and Customs Notification No.12/2012.....
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....ant Commissioner of Central Excise, as the case may be, is satisfied with the said goods including Software, Rejects, Scrap, Waste or Remnants; (a) being cleared in Domestic Tariff Area, other than scrap, waste or remnants are similar to the goods which are exported or expected to be exported from the units during specified period of such clearances in terms of Export and Import Policy..." 2.6 From the above, it may be seen that benefit of the Notification is available when goods sold in DTA are in accordance with Para 6.8 of Exim Policy and when such goods are similar to goods exported. This clearance is after due satisfaction of appropriate authority mentioned therein. 2.7 DTA clearances are governed by Paragraph 6.8 of the Foreign Trade Policy (as applicable from time-to-time). During the Impugned Period, the Appellant effected sale of manufactured goods in DTA in accordance with Paragraph 6.8(a) of the Foreign Trade Policy. For ease of reference, the relevant excerpt from Paragraph 6.8(a) is reproduced hereinbelow: "(a) Units, other than gems and jewellery units, may sell goods upto 50% of FOB value of exports, subject to fulfilment of positive NFE, on payment of concessi....
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....at the Impugned Order is incorrect and merits to be set-aside. 3. The Department, having accepted the Development Commissioner's certificate for the other issue, cannot seek to turn a blind eye to the said certificate for deciding whether goods cleared to DTA are similar to those goods that are exported. Hence, it is submitted that the demand is liable to be set aside. Previous period CESTAT order in Appellant's own case is squarely applicable. 4.1 In this regard, reliance is placed on Order-In-Original No. 29 to 46/2009 (C) dated 24.03.2009 in the Appellant's own case, passed by the Learned Commissioner of Central Excise, Puducherry. Based on the LOP and permissions granted by the Development Commissioner and after relying upon CBEC Circular No. 85/95-Cus., dated 26.07.1995, the said Order held that goods sold in DTA are 'similar' to goods exported inasmuch as they all are 'Precision Optical Components'. This decision was challenged by the Revenue before this Hon'ble Tribunal. Thereafter, this issue was settled in favour of the Appellant in General Optics (Asia) Ltd. v. CCE - 2018 (363) E.L.T. 658 (Tri-Chennai). The decision attained finality since the Department did not challe....
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....lant is entitled to benefit of Notification No. 51/96-Cus., dated 23.07.1996. Thus, demand, if any, ought to be limited to Rs. 51,36,532/- 7.1 Even though the OIOs, vide paragraph 15.2, held that the Appellant is eligible for benefit of Notification No. 51/96-Cus. dated 23.07.1996 on all goods sold in DTA, the OIOs failed to consider the benefit in quantifying the demand. Therefore, the Appellant filed an application for rectifying this clerical error vide letter dated 21.01.2019. However, no Order has been passed in this regard. 7.2 Therefore, assuming without acceding that the Appellant is not entitled to exemption under Notification 23/2003, it is prayed that the duty payable should be computed after factoring the benefit available to the Appellant under Notification No. 51/96-Cus. dated 23.07.1996. It is submitted that this Hon'ble Tribunal, in the Appellant's own case in General Optics (Asia) Ltd. v. CCE - 2005 (191) ELT 1192 (Tri-Chennai) held that Appellant is entitled to exemption under the said Customs Notification in respect of DTA sale. This decision was upheld by Hon'ble Supreme Court in 2007 (215) ELT A102 (SC) and has thus attained finality. 7.3 In any case, as sta....
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....xported by them as well as cleared to DTA are precision optical components and are similar to the goods exported. The department alleges that goods are not similar and that the earlier case applies only in respect of cover and coveter glasses and therefore not applicable to the present case. The goods other than cover and coveter glasses which fall under the current show cause notices are listed out in para-16 of the OIO. The reason stated by original authority for confirming the demand is that the appellant did not submit any conclusive technical proof to prove that the goods cleared are "similar goods" as envisaged in the notification. Apart from this, there is no other discussion given thereto. The Commissioner (Appeals) also has reiterated that the appellant has not produced any technical proof to show that the goods are not 'similar'. 15. It is to be seen that appellant is authorized to manufacture precision optical components, instrument assemblies / sub-assemblies. Such authorization is given by the Secretariate of Industrial Approvals from the Department of Industrial Development under the Ministry of Industry. The goods can be cleared only when the Development Commissione....
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.... the goods cleared by the appellant in DTA are nothing but the goods which are similar to the goods exported well within the meaning assigned to the same in paragraph 6.8 of FTP. It has been demonstrated that the manufacturing activity is same for both type of colours. The similarity of the goods is established beyond reasonable doubt by the test report got conducted on the impugned goods for the subsequent period and relied upon, as is evident from the Order-in-Original, dated 31.12.2012 (adjudicating the SCN issued for the period Feb 2011 to Jan 2012). We find that facts of the case here are in a narrower compass compared to the cases discussed as above, the difference in goods only being that of concentrated or diluted. Both of them are named ceramic colours only. Test reports indicated that they have similar composition as rightly held by the Learned Commissioner for the subsequent period. Therefore, there is no doubt that the goods exported and the goods cleared by the appellants are similar in terms of Para 6.8 of FTP. Moreover, the fact that Development Commissioner has issued permission is not denied. We hold that in view of the judgement in Novapan Industries (Supra), the ....