2003 (10) TMI 585 - AT - Central Excise

Summary

Issues:
1. Applicability of duty rate to DTA sales against foreign exchange in accordance with Exim Policy.
2. Denial of benefit under Notification 13/98-C.E. for clearances made in terms of Exim Policy.
3. Prima facie case for total waiver of duties and penalties based on case law.

Analysis:

1. The issue in dispute pertains to the applicable rate of duty for DTA sales against foreign exchange as per Para 9.10 of the Exim Policy. The Tribunal considered the denial of the benefit of Notification 13/98-C.E. to the applicants due to their clearances to DTA against payment of foreign exchange in terms of Para 9.10. However, the Tribunal referred to a previous case law where it was held that sales to DTA against foreign exchange should be treated similarly to physical exports. Consequently, the Tribunal found that the applicants had a strong prima facie case for total waiver of duties and penalties. The Tribunal dispensed with the requirement of pre-deposit and stayed the recovery of duties and penalties pending the appeals.

2. The denial of the benefit under Notification 13/98-C.E. was based on the contention that the clearances to DTA against payment of foreign exchange were in accordance with Para 9.10 of the Exim Policy, while the notification was deemed to cover only clearances made under either Para 9.9b or 9.20 of the Exim Policy. However, the Tribunal's interpretation, based on previous case law, indicated that the benefit of the notification should extend to clearances to DTA on payment of foreign exchange in terms of Para 9.9 of the Exim Policy. This interpretation supported the applicants' claim for a waiver of duties and penalties.

3. The Tribunal's decision was influenced by the precedent set in a previous case regarding the treatment of sales to DTA against foreign exchange, aligning them with physical exports. This alignment allowed the applicants to establish a strong prima facie case for the total waiver of duties and penalties. The Tribunal, therefore, decided to dispense with the pre-deposit requirement and stayed the recovery of duties and penalties during the pendency of the appeals. The detailed annexure provided the specifics of the duties and penalties involved in the case, further supporting the Tribunal's decision to grant the waiver.