2014 (9) TMI 28 - AT - Central Excise

Computation of DTA entitlement - demand export to be considered or not - Held that - High Court of Gujarat in the NBM Industries 2011 (9) TMI 360 - GUJARAT HIGH COURT and Gujarat Fashion cases (2014 (2) TMI 57 - GUJARAT HIGH COURT) and the Tribunal s decision in the case of Amitex Silk Mills Pvt. Ltd. (2005 (10) TMI 128 - CESTAT, NEW DELHI), we are of the prima facie view that the clearance effected by way of deemed exports can be taken into account for computing the DTA entitlement. Thus, the appellant has made out a prima facie case for waiver of pre-deposit of the dues adjudged against them. Accordingly, we grant waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.

Summary

Issues:
- Duty demand confirmation against the appellant for exceeding DTA entitlement by not considering deemed exports.
- Interpretation of DGFT clarification on computation of DTA entitlement regarding actual vs. deemed exports.

Analysis:
1. The appeal challenged the Order-in-Appeal confirming a duty demand against the appellant for not considering deemed exports in determining the DTA entitlement. The lower appellate authority upheld the duty demand, imposing penalties and interest. The appellant contended that previous judgments supported the inclusion of deemed exports for DTA entitlement calculation, citing cases like Amitex Silk Mills Pvt. Ltd. Vs. Commissioner of Central Excise and decisions by the Hon'ble High Court of Gujarat. The appellant sought a stay on the demands based on these arguments.

2. The Revenue, represented by the Addl. Commissioner, argued that the DGFT clarification from 2009 specified that only actual exports should be considered for DTA entitlement calculation, excluding deemed exports. The Revenue maintained that the duty demand was legally sustainable based on this interpretation. Both parties presented their arguments before the Tribunal.

3. The Tribunal, after evaluating the submissions and considering relevant legal precedents, including the judgments from the Hon'ble High Court of Gujarat and the Tribunal's decision in Amitex Silk Mills Pvt. Ltd. case, concluded that deemed exports could be taken into account for computing the DTA entitlement. The Tribunal found that the appellant had established a prima facie case for waiving the pre-deposit of the dues adjudged against them. Consequently, the Tribunal granted a waiver from pre-deposit and stayed the recovery of the dues during the appeal process.

This detailed analysis of the judgment highlights the key issues of duty demand confirmation and the interpretation of DGFT clarification on DTA entitlement computation, providing a comprehensive overview of the legal arguments and the Tribunal's decision.