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TMI Blog2018 (11) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... n are under this Para being supplies effected in DTA against payment in foreign exchange. It is also not in dispute that the appellant had obtained necessary permission for such clearances. These clearances are, however, not covered by either notification. As a creation of law, the Tribunal cannot go beyond the scope of the law itself nor modify it. Exemption under N/N. 2/95-CE - Held that:- Hon’ble Supreme Court of India has in the case of Virlon Textile Mills Ltd [2007 (4) TMI 6 - SUPREME COURT OF INDIA] held that this exemption notification will be applicable even when the goods are exported against foreign exchange to DTA - the appellant is entitled to the benefit of Exemption Notification No. 2/95-CE dated 04.01.1995. Appeal dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the EXIM Policy should be counted as exports and hence, should be treated as not leviable to Central Excise Duty or otherwise. Second, whether these clearances can be termed as deemed exports within the meaning of the EXIM Policy and treated at par with the physical exports. Third, if the goods cleared cannot be treated as exports or deemed exports, whether they can be considered as clearance of goods to DTA which will entitle them to the benefit of the corresponding Notification No. 2/95-CE? 4. It is the case of the appellant that clearances were made to DTA after obtaining necessary approval from the DGFT in terms of Para 9.10(b) against foreign exchange payment. Thus they should be treated as deemed exports and be considered at par w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise and Salt Act, 1944 (1 of 1944): Provided that the exemption contained in this notification shall not apply to such goods if allowed to be sold in India. 6. She explains that full exemption from payment of duty available to 100% EOUs is by virtue of this notification which is not applicable if the goods are allowed to be sold in the India, as in the present case. She also draws our attention to the Notification No. 2/95-CE which exempts duties of excise in excess of 50% of each of duties of customs under Sec.12. This exemption is applicable for DTA sales in terms of Para 9.9 of the EXIM Policy. In other words, neither the Exemption Notification No. 125/84 which fully exempts the goods produced in 100% EOU nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly exempts the goods from payment of excise duty. On the other hand, if the goods are sold in DTA, such sales are covered by Para 9.9 of the EXIM Policy and Notification No. 2/95 gives exemption of 50% of excise duty leviable on such goods. The EXIM Policy has created a further category of sales within India which get counted towards fulfilment of export performance in Para 9.10(b). The clearances in question are under this Para being supplies effected in DTA against payment in foreign exchange. It is also not in dispute that the appellant had obtained necessary permission for such clearances. These clearances are, however, not covered by either notification. As a creation of law, the Tribunal cannot go beyond the scope of the law itself n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary because other supplies in DTA gave certain benefits to the economy like preservation of foreign exchange, import substitution, savings of transportation costs and to provide competitiveness and level-playing field for Indian exporters. According to the Revenue, the expression occurring in the second proviso to Section 3(1), namely, allowed to be sold in India was applicable only to DTA sales against rupee and not DTA sale against foreign exchange. In this civil appeal, we are concerned with the law as it stood prior to 11-5-2001. In our view, DTA sale against foreign exchange was covered by the expression allowed to be sold in India and, therefore, such sale fell under the proviso to Section 3(1) of the 1944 Act. In the circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er duty. Thirdly, once DTA sales against foreign exchange are covered by the above expression allowed to be sold in India , all issues relating to calculation of the duty payable in terms of notification No. 2/95-CE will have to be decided afresh by the adjudicating authority and accordingly, we hereby remand the matter back to the Commissioner for calculating the duties payable by the assessee in terms of Notification No. 2/95. The Commissioner will calculate the duties accordingly as hereinabove mentioned. Lastly, we are of the view that there is no fundamental difference, as far as the exemption notification No. 2/95-CE is concerned, between DTA sales against foreign exchange and DTA sales against rupee. Once DTA sales against foreign e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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