2007 (1) TMI 419 - AT - Central Excise

Summary

Issues:
1. Interpretation of supplies under para 9.10(b) of the EXIM Policy for entitlement to DTA clearance.
2. Validity of the clarification issued by the Deputy Secretary, Ministry of Commerce and Industries regarding DTA sale against physical exports.
3. Impugned Order passed by the adjudicating Commissioner without considering the pending Writ Petition challenging the clarification.
4. Decision to set aside the impugned Order and remand the matter for fresh consideration after the Writ Petition is decided.
5. Ensuring the appellants have a reasonable opportunity to be heard before a final order is passed.

Analysis:

1. The appellants contended that supplies under para 9.10(b) of the EXIM Policy should apply to entitlement for DTA clearance. The clarification issued by the Deputy Secretary, Ministry of Commerce and Industries on 4-4-2000 stated that DTA sale would only be available against physical exports. The learned Advocate mentioned a pending Writ Petition challenging this clarification before the Hon'ble High Court of Calcutta.

2. The Tribunal found that the clarification dated 4-4-2000 significantly impacted the appellants' case. They concluded that the impugned Order by the adjudicating Commissioner, made without considering the pending Writ Petition, was premature and prejudicial to the appellants' interests. Therefore, the Tribunal decided to set aside the impugned Order and remand the matter back to the adjudicating Commissioner. The decision to remand was made to allow the Commissioner to reconsider the case after the Writ Petition challenging the clarification is resolved by the High Court.

3. Both appeals were allowed by way of remand under the specified terms. The Tribunal emphasized the importance of giving the appellants a reasonable opportunity to present their case before a final order is passed. The decision to remand the matter was aimed at ensuring fairness and proper consideration of all relevant factors in light of the pending legal challenge.

4. The judgment was dictated and pronounced in open court, signifying the formal conclusion of the proceedings. The Tribunal's decision to remand the case highlighted the significance of legal clarity and the need for a fair and just determination based on the outcome of the pending Writ Petition challenging the clarification related to DTA sales against physical exports.