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TMI Blog2015 (2) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which would be eligible for the facility on the ground of 100% exports, it appears that even though the heading gives tentative list of products, the objective in the list does not seem to list out individual products rather than category. Decision in the case of Consolidated Coin Co. Ltd. (2013 (2) TMI 416 - CESTAT NEW DELHI) is only an interim order and the Tribunal was considering dispensation of pre-deposit. In that case, the Tribunal straightaway accepted the similarity of the items in dispute and when there is no discussion and no law has been laid down, this decision cannot be applied. As regards the decision in the case of Hindustan Lever Ltd. (2010 (10) TMI 532 - CESTAT, CHENNAI), this was rendered while considering the Notification No. 2/95-C.E. and there a view was taken that fresh mushrooms and processed mushrooms are similar and it was held that both belong to same classification of goods and therefore similar. In this case also, there was no detailed discussion and the consideration was only of the products before the Tribunal. When decisions are taken in respect of particular products, it may not be correct to apply the decisions straightaway to other products. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be demanded and amount paid by them of more than ₹ 45 lakhs was to be adjusted. 3. Both the show cause notices have been adjudicated and impugned orders have been passed whereby the demands for differential duty have been confirmed with interest and penalties have been imposed. 4. The learned counsel submitted that the Commissioner did not have the jurisdiction to decide the issue at all. He submitted that the Board s circular No. 72/2000-Cus., dated 31-8-2000 issued on the subject of administrative control over 100% EOUs instructed that except for the EOUs located within the municipal limits of port cities/towns, the work of all EOUs shall be handled by the staff of jurisdictional Commissioner of Customs (Seaport). In April 2003, Board, vide its circular No. 31/2003-Cus., dated 7-4-2003 stated that the matter has been re-examined and it has been decided that in the port cities, the administrative control over all the EOUs including the EHTP/STP units falling within the territorial jurisdiction of Commissioner of Customs shall be with the Commissioner of Customs and at other places, the administrative control over EOU/EHTP/STP units shall be with jurisdictional Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise. The only exception is Bangalore Customs. 2. In view of implementation of Automation of Central Excise and Service Tax (ACES) the issue of administrative control over EOUs/EHTP/STP, presently under Customs formations, was discussed by the Board on 16-4-2010. 3. It has been decided by the Board in the meeting held on 16-4-2010 that the jurisdiction over the EOU/EHTP/STP even in the port cities should be with the Central Excise formations. This will facilitate uniform and better administration/control of such EOUs, and, also facilitate the shift to GST regime in future. It has been decided that the shift in the process of administration, including handing over of all the records etc. of EOUs from Customs formations to the respective Central Excise formations can be effected latest by 31st July 2010. 7. On going through the letter reproduced above, we find ourselves in agreement with the submission of the learned AR that the first paragraph states the existing position prior to the introduction of new system. Paragraph 3 gives the decision taken and its implementation. It is to be noted that in paragraph 3 there is no exception for Bangalore Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition (ii) stipulated for availing the benefit of Sl. No. 2 of the Notification ibid, which stipulates that if the goods are cleared into DTA in accordance with sub-paragraphs (a), (d), (e) and (g) of paragraph 6.8 of the Foreign Trade Policy (FTP), the exemption shall not be availed until the Deputy Commissioner of Customs or Assistant Commissioner of Customs or Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, is satisfied that the said goods being cleared in DTA are similar to the goods which are exported or expected to be exported from the unit during specified period of such clearances in terms of FTP. The appellant further stated that the notice also relies on Para 6.8(a) of the FTP to state that the said paragraph is also categorical that within entitlement of DTA sale, unit may sell in DTA its products similar to goods which are exported or expected to be exported. However, the notice then places reliance on Rule 2(f)(i) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 to interpret the expression similar goods and states that similar goods would mean goods which although not alike in all r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Foreign Exchange Account of SEZ unit. Sale to DTA would also be subject to mandatory requirement of registration of pharmaceutical products (including bulk drugs). An amount equal to Anti-dumping duty under section 9A of the Customs Tariff Act, 1975 leviable at the time of import, shall be payable on the goods used for the purpose of manufacture or processing of the goods cleared into DTA from the unit. According to this paragraph, if a unit is manufacturing only one product, the unit can sell 50% of FOB value of exports and if the unit is manufacturing more than one product and exporting, they can sell 90% of FOB value of export of the specific products subject to the condition the average DTA sale does not exceed 50%. Therefore, the most important question that arises is whether the assessee before us is engaged in the manufacture of one product or multiple products. Apparently, the Department has taken a view that it is multiple products and a common man s understanding would be the same. Going by layman s understanding and going by the meaning of similarity in the dictionary, it is difficult to accept the submission that the 4 items in dispute are similar to the ones whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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