2006 (12) TMI 34 - AT - Central Excise

EOU Revenue alleged that appellant is not eligible for the Notification No. 82/92 After considering all the detail authority rejected revenue appeal and allowed the appeal of assessee

Summary

Issues:
1. Eligibility of Notification No. 2/95 for deemed export clearance.
2. Eligibility of Notification No. 82/92 for clearance of final product to DTA.

Analysis:

Issue 1: Eligibility of Notification No. 2/95 for deemed export clearance:
The appellant, a 100% EOU, cleared scrap under Notification No. 2/95 and final products to DTA under Notification No. 82/92. The dispute arose regarding the eligibility of Notification No. 2/95 for deemed exports and whether the value of deemed exports should be included in the FOB value calculation for clearances to DTA. The Commissioner (Appeals) set aside the demand under Notification No. 2/95 but upheld it under Notification No. 82/92. The appellant argued that deemed exports should be considered for FOB value calculation based on precedents. The Tribunal agreed, emphasizing that deemed exports have elements of physical exports and should not be excluded from FOB value calculation. The Tribunal referred to previous judgments supporting this view. Ultimately, the Tribunal ruled in favor of the appellant, dismissing the revenue's challenge to the inclusion of deemed exports in the FOB value calculation.

Issue 2: Eligibility of Notification No. 82/92 for clearance of final product to DTA:
Regarding Notification No. 82/92, the appellant contended that no prior permission from the Development Commissioner was required. The revenue argued otherwise, stating that the appellant did not provide evidence of permission. The Tribunal examined the notification and found no explicit requirement for permission. Moreover, the appellant had obtained permission from the Development Commissioner to clear the final products to DTA. Consequently, the Tribunal held that the denial of benefits under Notification No. 82/92 by the Commissioner was incorrect and set it aside. As a result, the appeal by the revenue was dismissed, while the appeal by the assessee was allowed.

In conclusion, the Tribunal's judgment addressed the issues of eligibility under Notification No. 2/95 for deemed exports and under Notification No. 82/92 for DTA clearances. The decision favored the appellant, emphasizing the inclusion of deemed exports in FOB value calculation and confirming the appellant's entitlement under Notification No. 82/92 without the need for additional permission.