2003 (7) TMI 179

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....ri J.M. Sharma, learned Consultant, submitted that the Appellant is a 100% Export-Oriented Undertaking approved to manufacture and export soles, heels, tops lifts and emblems; that Para 9.10(b) of the EXIM Policy provides that supplies from 100% Export-Oriented Undertaking effected into D.T.A. against payment in foreign exchange shall be counted towards fulfilment of export performance; that the Appellants had supplied goods into DTA against payment in foreign exchange on payment of full Central Excise duty and such supplies were counted towards fulfilment of export performance and were considered as export for all purposes by the Appellants; that in accordance with the law and procedure prescribed in the EXIM Policy read with Handbook of P....

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....o be restricted to 50% of FOB value of physical exports; that the Tribunal observed that "If the Revenue is of the view that the value of the deemed exports should not have been taken into consideration for arriving at the value of the goods to be allowed to be sold in the DTA, the matter should have been taken up with the Development Commissioner who had initially accorded the permission to the Appellant." He also relied upon the decision in the case of Virlon Textile Mills v. CCE, Mumbai [2002 (139) E.L.T. 371 (Tribunal) = 2002 (50) RLT 349 (CEGAT)] wherein the Tribunal had held that the supplies made by the Appellants in domestic tariff area against the payment in foreign exchange will be deemed, for the purpose of Para 9.9, to have been....

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....of FOB value of export. 5. We have considered the submissions of both the sides. Notification No. 2/95-C.E., dated 4-1-95 provides concessional rate of duty of excise in respect of excisable goods produced or manufactured in a 100% Export-Oriented Undertaking and allowed to be sold in India in accordance with the provisions of sub-paragraphs (a), (b), (c) and (d) of Paragraph 9.9 or of Paragraph 9.20 of the Export and Import Policy 1997-2002. As per paragraph 9.9(b) of the EXIM Policy, DTA sale up to 50% of the FOB value of exports may be made subject to payment of applicable duties and fulfilment of minimum NFEP prescribed in Appendix 1 of the Policy. As per Paragraph 9.10 of the Policy, supplies effected in DTA against payment in forei....