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TMI Blog2006 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of appropriate duty as applicable from time to time at the rate for the time being in force as per the norms of Export Import Policy. As a 100% EOU they are entitled to DTA sales to the extent of 50% of the FOB value of exports including 5% rejects and 5% waste as per para 9.9 and 9.20 of Exim policy 1997-2002. The appellants cleared finished grey fabrics, rejects and waste during the period July 2001 to January 2002 in DTA under Notification Nos. 2/95-C.E., dated 4-1-1995 and 13/98-C.E., dated 2-6-1998. It was noticed by the department that while calculating the FOB value they have taken into consideration the value of deemed exports also and as per the interpretation of the department FOB value means value of physical exports only and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been set aside by the Supreme Court the same will no long hold good as Larger Bench decision got merged with the Supreme Court decision. It was accordingly submitted that they were rightly entitled to the benefit of Notification Nos. 2/95 and 3/98. However, if these notifications are held as inapplicable then they are entitled to full exemption under Notification No. 125/84, dtd. 26-5-1984 which exempts the goods manufactured by 100% EOU. Though the exemption is not available in respect of goods allowed to be sold in India but since the department is taking a stand that the goods are not allowed to be sold in India, the benefit of Notification No. 125/84 cannot be denied. It was further submitted that in the alternative the duty should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use if the goods are not allowed to be sold in India there cannot be any clearance for home consumption and the rate of duty will be as one prescribed under proviso to Section 3A of Central Excise Act because the undisputed facts still remains that the goods were manufactured in a 100% EOU and therefore the rates applicable to EOU will be applicable and only the concessional rate applicable to EOUs in respect of permitted DTA sale will become inapplicable. This is also in consonance with para 9.20 of Exim policy which provides that sales beyond prescribed limits shall be on payment of full duty. Since the limits are in respect of physical exports only, the clearances in present case are to be treated as clearance beyond limits appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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