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TMI Blog2015 (4) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... ods cleared into DTA must be comparable with the contemporaneous import price of identical goods or similar goods into India in comparable quantity. Department was not correct in adopting the price at which the unit-I had imported 200 to 500 halogen capsules as sample as the quantum of DTA sales being made by the 100% EOU was much larger and in this regard, the import price of gold coated Halogen Capsules was not relevant as the 100% EOU (Unit-I) was not manufacturing such halogen capsules. Moreover, in terms of the information furnished by the appellant, contemporaneous import of similar goods in comparable quantity had been made at the prices which were comparable with the DTA sale price adopted by the appellant unit. However, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Judicial),JJ. For the Appellants Mr. Rupesh Kumar, Advocate For the Respondent : Mr. Yashpal Sharma, DR ORDER Per Rakesh Kumar (for the Bench): The facts leading to filing of these appeals are, in brief, as under: 1.1 M/s Autolite India Ltd., Unit-I, located at Sitapura, is a 100% Export Oriented Unit (EOU). This unit manufactures halogen capsules and Halogen bulbs for export. The second unit-II located at Parwati Nagar, Jaipur, is a DTA Unit which manufactures halogen bulbs. A 100% EOU is entitled to make DTA Clearances in terms of the Foreign Trade Policy which in terms of the para 6.8(a) of the Foreign Trade Policy can be upto 50% of the FOB Value of the exports. The period of dispute in this case is from Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termined their DTA sale price on the basis of sale price at which the halogen bulbs manufactured by the Unit-II (DTA Unit) were being sold. It is on this basis that the duty demand of ₹ 42,92,481/- for the period from August 2004 to July 2005 and duty demand of ₹ 28,65,462/- for the period from August 2005 to February 2006 were made by two separate Show Cause Notices. 1.4 In course of search of Unit-I as well as Unit-II of the appellant company on 06.08.2005, from possession of store keeper of the DTA Unit Sh. Satyanarayan, a diary was recovered which contained some entries regarding receipt of halogen tubes from the 100% EOU (Unit-I). Sh. R K Mathur, Chef Manager, in his statement, stated that those quantities had been recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding alleged clandestine removal by 100% EOU (Unit-I) to the DTA Unit (Unit-II), the diary had not been supplied, that merely on the basis of the entries in the diary and the statement of the Chief Manager, Sh. RK Mathur, the duty demand cannot be confirmed against the unit-I, that there is no evidence in support of the allegation of under valuation of the DTA Clearances, that the appellant throughout during the period of dispute have paid duty in respect of their DTA clearances on the FOB price at which the goods were exported, that this price is comparable with the price at which other importers have made imports of similar Halogen Capsules during the same period in comparable quantities, that the evidence in this regard had been produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere would be no justification for rejecting the same, and that in view of this the duty demand based on the allegation of under valuation of DTA sale price is not sustainable. 4. Sh. Yashpal Sharma, the Ld. DR, defended the impugned order by reiterating the findings of the Commissioner. 5. We have considered the submissions from both the sides and perused the records. Unit-I of the appellant company is a 100% EOU and is engaged in the manufacture of halogen capsules and halogen bulbs. Unit-II of the appellant company is DTA Unit as is engaged in only in the manufacture of halogen bulbs. During the period of dispute i.e. form August 2004 to July 2005 and from August 2005 to February 2006 Unit I had made DTA clearances of Halogen capsu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggregate value of duties of customs on import of like goods into India, the assessable value for this purpose is to be determined under section 14 of the Customs Act, 1962. Therefore, the assessable value of the goods cleared into DTA must be comparable with the contemporaneous import price of identical goods or similar goods into India in comparable quantity. 7. In our view, the Department was not correct in adopting the price at which the unit-I had imported 200 to 500 halogen capsules as sample as the quantum of DTA sales being made by the 100% EOU was much larger and in this regard, the import price of gold coated Halogen Capsules was not relevant as the 100% EOU (Unit-I) was not manufacturing such halogen capsules. Moreover, in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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