2010 (8) TMI 885 - AT - Central Excise

Valuation - inclusion of deemed exports in assessable value of DTA Clearance - It was alleged that such DTA sales of their goods against the deemed export was not eligible for the concessional rate of duty under N/N. 2/95-C.E., dated 1-4-1995 and N/N. 13/98-C.E., dated 2-6-1998 - Held that - Tribunal in the case of Amitex Silk Mills Pvt. Ltd. v. CCE 2005 (10) TMI 128 - CESTAT, NEW DELHI has held that while arriving at the 50% DTA sales, the value of deemed export is not to be excluded - appeal dismissed - decided against Revenue.

Summary

Issues:
- Eligibility for concessional rate of duty under Notification No. 2/95-C.E. and No. 13/98-C.E.
- Interpretation of DTA sales against deemed export value for concessional duty.
- Applicability of Tribunal's judgment in the case of Amitex Silk Mills Pvt. Ltd.
- Dispute over appeal filed in the Hon'ble Supreme Court.

Analysis:
1. The issue in this case revolves around the eligibility of the appellant for the concessional rate of duty under Notification No. 2/95-C.E. and No. 13/98-C.E. The appellant, engaged in the manufacture of twisted yarn and fabrics, cleared goods in the domestic tariff area (DTA) based on permission granted by the Development Commissioner. The dispute arose when it was alleged that such DTA sales against deemed export were not eligible for the concessional duty rate.

2. The Commissioner (Appeals) set aside the impugned order, relying on the Tribunal's majority decision in the case of Amitex Silk Mills Pvt. Ltd. The Tribunal held that the value of deemed export should not be excluded while calculating the 50% DTA sales. Consequently, the impugned order was overturned by the Commissioner (Appeals) based on this interpretation.

3. The Revenue, in their appeal, did not contest the applicability of the judgment in the case of Amitex Silk Mills Pvt. Ltd. to the present case. However, they highlighted that the said order was under appeal in the Hon'ble Supreme Court of India. Despite the lack of detailed facts regarding the appeal before the Supreme Court, the Revenue's appeal did not provide any information on the status of the Tribunal's order in the case of Amitex Silk Mills Pvt. Ltd.

4. The Tribunal, after considering the arguments presented, found no merit in the Revenue's case. The appeal filed by the Revenue was consequently rejected based on the lack of dispute regarding the applicability of the Tribunal's judgment and the absence of any stay on the said order by a higher appellate forum. Therefore, the Tribunal upheld the decision of the Commissioner (Appeals) and dismissed the Revenue's appeal.

This detailed analysis of the judgment highlights the key issues surrounding the eligibility for concessional duty rates, the interpretation of DTA sales against deemed export value, and the applicability of the Tribunal's previous judgment in a similar case. The Tribunal's decision to reject the Revenue's appeal was based on the lack of merit in their arguments and the absence of any challenge to the Tribunal's previous ruling.