2014 (8) TMI 746 - AT - Central Excise

DTA Entitlement - When the entitlement accrues on the first day of a financial year based on the export performance and NFEP during the preceding financial year, can it be said that merely because the entitlement was formalized by a letter of the Development Commissioner later, the benefit should be denied during the period of interregnum between the first day of financial year and the date of issue of permission by the Development Commissioner - Held that - The right to sell in the DTA accrues to the appellant on the first day of a financial year. That accrued/vested right cannot be taken away merely because there was a delay in issuing the letter of permission by the Development Commissioner. Such an interpretation would make a mockery of the provisions of EXIM policy and the benefits granted to the exporter under the said policy - during the interregnum, there was a permission available which was valid, based on the preceding year s export performance and the clearance made by the appellant was within this limits specified. Therefore, it cannot be said that the appellant did not have the requisite permission for sale in to DTA - Following decision of Global Wool Alliance Pvt. Ltd. 2011 (2) TMI 637 - CESTAT, MUMBAI - Decided in favour of assessee.

Summary

Issues:
1. Duty demand confirmation against the appellants.
2. Penalty imposition on specific individuals of the appellant-firms.
3. Interpretation of entitlement to sell in Domestic Tariff Area (DTA) based on export performance.
4. Application of Notification 2/95 in relation to permission for DTA sales.
5. Invocation of extended period of limitation for duty demands.

Analysis:
1. The judgment revolves around confirming duty demands of significant amounts against the appellant firms, along with imposing penalties on specific individuals. The appellants contested the demands, arguing that they are 100% Export Oriented Units (EoUs) engaged in cotton yarn manufacturing, with permission to sell into DTA based on export performances. The Commissioner's finding that duty is demandable on DTA sales before permission was granted was challenged, asserting that it negates the entitlement granted under the EXIM policy.

2. The appellants emphasized that waste cotton, whether hard or soft, is excise duty exempt, and they had entitlement for DTA clearances even before the formal permission was issued. Citing the case of Commissioner of Central Excise vs. Global Wool Alliance Pvt. Ltd., they argued that the benefit of Notification 2/95 cannot be denied due to delays in obtaining authorization. The judgment highlighted that the right to sell in DTA accrues on the first day of a financial year, and delays in formalizing permissions should not negate this accrued right.

3. The Tribunal analyzed the legal aspects, emphasizing that the entitlement to sell in DTA accrues based on export performance, and delays in issuing formal permissions should not impact this entitlement. Referring to the Global Wool Alliance Pvt. Ltd. case, it concluded that the appellant had the necessary permission during the interregnum period, making the duty demands unsustainable in law. Consequently, the impugned orders were set aside, and the appeals were allowed based on the merits of the case.

4. The judgment did not delve into the issue of limitation, as the Tribunal found the appellants eligible for relief on the merits of the case. By upholding the entitlement accrued to the appellants under the EXIM policy, the Tribunal emphasized the importance of honoring the rights vested in exporters based on their export performances and compliance with regulations.