2007 (7) TMI 279 - AT - Customs

This issue as to where the deemed exports has to be included for the purpose of determining entitlement in the DTA - the clearances made by the respondent are clearly within the permissible limit of DTA sales as permitted by the Development Commissioner. - We find that the raw materials were admittedly issued for manufacture in the 100% EOU and no raw materials as such has been diverted and hence demand of duty on the raw materials is not sustainable. Therefore, we do not find any infirmity in the order of the Commissioner in not demanding the duty on the raw materials which have gone into manufacture of finished products/wastes and rejects, which have been sold in DTA with the permission of the Development Commissioner.

Summary

Issues:
- Dispute over duty on inputs used in finished products cleared to DTA
- Interpretation of "exports" including physical and deemed exports
- Determining entitlement in DTA sales based on deemed exports
- Demand of duty on raw materials diverted for manufacture

Analysis:
The appeals before the Appellate Tribunal CESTAT, Ahmedabad involved a dispute regarding the duty on inputs used in finished products cleared to the Domestic Tariff Area (DTA). The respondent, a 100% Export Oriented Unit (EOU), had imported duty-free Texturised yarn/PFY and manufactured Twisted yarn, which were then cleared on a deemed export basis to other 100% EOUs. The Department sought to impose excise duty on the finished goods and customs duty on the raw materials used in the finished products cleared to DTA.

The crux of the issue revolved around the interpretation of "exports," distinguishing between physical exports and deemed exports. The Development Commissioner had permitted DTA sales up to 50% of the FOB value of exports, treating deemed exports on par with physical exports. The Revenue Department, however, contended that deemed exports should not be equated with physical exports, leading to a demand for duty on the excess DTA sales. The Tribunal had previously clarified the inclusion of deemed exports for determining entitlement in DTA sales, ruling in favor of the respondent.

In this case, the Tribunal found that the raw materials were used for manufacturing within the 100% EOU and not diverted, rendering the demand for duty on raw materials unsustainable. Therefore, the Tribunal upheld the Commissioner's decision not to demand duty on the raw materials used in the finished products and rejects sold in DTA with the Development Commissioner's permission.

The Department's reliance on a previous decision involving unauthorized diversion of goods was deemed misplaced by the Tribunal. As there was no evidence of diversion in the present case, the appeals by the Department were ultimately rejected. The Tribunal's decision highlighted the importance of correctly interpreting the scope of exports, especially in the context of deemed exports and DTA sales, to avoid unnecessary duty demands on legitimate transactions.