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2014 (6) TMI 128 - AT - Central Excise100% EOU - DTA Clearances - whether the appellant is eligible to clear into DTA 50% of their FOB value of exports of deemed exports or not - Held that - in the case of Gandhi Fibers, this bench vide order dt. 11.06.2009 relying upon the judgment of Virlon Textile Mills Ltd. had allowed the appeal of the assessee holding that assessee is eligible to clear goods to Domestic Tariff Area by taking 50% of the deemed exports value as their eligibility. It is noticed that this judgment of the Tribunal has attained finality in the hands of Apex Court. Since the issue is covered by the judgment of Hon ble High Court of Gujarat in the case of Gandhi Fibers 2010 (12) TMI 797 - GUJARAT HIGH COURT and as also in the case of NBM Industries 2011 (9) TMI 360 - GUJARAT HIGH COURT and Amitex Silk Mills Pvt. Ltd. 2005 (10) TMI 128 - CESTAT, NEW DELHI , we find that the impugned order is incorrect - Decided in favour of assessee.
Issues:
Whether the appellant is eligible to clear into DTA 50% of their FOB value of exports of deemed exports or not. Analysis: The appeal was against OIA No. KS/350/DAMAN/2006, where the appellant, a 100% EOU manufacturing polyester products, cleared goods to DTA discharging 50% of the duty. The lower authorities issued a show cause notice, denying this benefit under paragraph 6.8 of the EXIM Policy. The appellant's argument relied on precedents like Gandhi Fibers and Virlon Textile Mills Ltd., emphasizing that the benefit should apply to deemed exports as well. The Departmental Representative contended that without DGFT permission, goods couldn't be cleared into DTA at concessional duty. Referring to Jumbo Bags Ltd. and BAPL Industries Ltd., it was argued that only physical exports should count for DTA entitlement. The Tribunal found the issue settled by the Gandhi Fibers case, where it was held that 50% of deemed exports value could be considered for DTA clearance eligibility. This decision was upheld by the Hon'ble High Court of Gujarat and the Apex Court. The Tribunal emphasized that recent jurisdictional High Court decisions should prevail over older judgments, like Jumbo Bags Ltd. and BAPL Industries Ltd. Therefore, the impugned order denying the benefit was set aside, allowing the appeal with consequential relief. In conclusion, the Tribunal ruled in favor of the appellant, holding that they were entitled to clear goods to DTA based on 50% of their deemed exports value, as established by precedents and upheld by higher courts. The impugned order was deemed unsustainable and set aside, granting the appellant relief.
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