TaxTMI 
TaxTMI 
2023 (7) TMI 426
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....arnings as percentage of export to the Development Commissioner, MEPZ, Chennai. Accordingly, the appellant had submitted necessary details, vide their letters dated 10.01.1998 and 01.02.1999. Appellant got the approval from the Development Commissioner, MEPZ, Chennai to avail the exemption (partial) under Notification 2/95 dated 04.01.1995 for their DTA clerances. As per para 9.5 of EXIM Policy 1997-02, if net of foreign exchange earned as a percentage of exports is between 10% to 25%, an assessee can clear 30% of value of production and exceeding 25%, an assessee can clear 40% of value of production under DTA sales. If net foreign exchange percentage is less than 10%, then an assessee is not permitted / eligible to clear the goods in DTA sales. On examination by audit as to the details furnished by appellant to MEPZ vide letters dated 10.01.1998 and 01.02.1999 for obtaining approval, it was seen that the appellant had deducted a sum of Rs.53,04,928/- being the imported raw materials consumed for DTA clearances. Thus, the value of raw materials was reduced. Consequently, the value addition achieved by appellant was boosted to 30%. Based on such net foreign exchange percentage, the ....
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....2/95 dt. 04.10.1995 which allows concessional rate of duty. 4. The Ld. Counsel asserted that while applying for permission to sell goods in DTA, the appellant has submitted the following documents : (a) Statement showing the details of import materials (b) Statement showing the export sales during the period (c) Statement showing the cost of completed finished goods (d) Statement of value addition. These documents are certified by the Chartered Accountant and verified and countersigned by Superintendent of Central Excise. Further, all the details were available in the books of accounts maintained by the appellant and the demand has been raised on the basis of figures available in the accounts maintained by the appellant. There was no information or document obtained or seized from any third party to allege suppression with an intention to evade payment of duty so as to invoke the larger period of limitation. 5. It is stressed by the Ld. Counsel that the permission is granted on the basis of the records, documents and certificate furnished by the 100% EOU and after thorough examination and in-depth verification of facts. The figures furni....
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....pproval for DTA clearance. Para-9 of the impugned order was adverted to by the Ld. A.R to submit that only if the net foreign exchange earnings is above 10%, the appellant would be able to obtaining permission to make DTA clearance at concessional rate of duty. Appellant has wrongly deducted the value of imported raw materials consumed for DTA sales to the tune of Rs.53,05,028/- which has resulted in projecting the value to 30.6%. If such deduction is not made, the net foreign exchange earnings for the relevant period would be only 3.95%. The appellant had adopted an incorrect calculation and therefore has resulted in incorrect projection of net foreign exchange. The show cause notice has been correctly issued demanding differential duty on this ground. He prayed that the appeal may be dismissed. 9. Heard both sides. 10. The main allegation in the show cause notice is that the appellant had contravened the conditions of Notification No.2/95 dt. 04.01.1995 read with EXIM Policy 1997-2002 in as much as they had furnished incorrect details to MEPZ and obtained approval for clearance of goods to DTA sales. For making DTA clearances, the appellant has to furnish details of foreign....
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....t. 13. The Hon'ble Supreme Court in the case of Cosmic Dye Chemicals Vs Collector of Central Excise, Bombay - 1995 (75) ELT 721 (SC) held that the word suppression of facts is qualified by the word 'wilfull' and therefore there should be intent to evade payment of duty. "7. Now coming to the facts of this case, the appellant's case is that he thought bona fide that he need not include the value of the Rapidogens in his declaration, for the reason that the said product was fully exempt from duty under Notification No. 180/61, dated November 23, 1961. Certain facts are brought to our notice in support of this plea. It is also brought to our notice that on the date of filing of his declaration, two High Courts had taken the view that the goods exempted from duty are not includible within the definition of `excisable goods' as defined in clause (d) of Section 2. No doubt, two other High Courts had taken a contrary view. The appellant's factory is in the State of Maharashtra and the Bombay High Court had not taken a view one way or the other. In all the circumstances, the appellant says, he was under the bona fide impression that he need not mention the value of the Rapidoge....