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TMI Blog2018 (11) TMI 1508X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the learned Advocate for the appellant that the demand is barred by limitation inasmuch as the benefit of the notification was obtained by misdeclaring the fact that lipsticks were exported or meant to be exported, then the appellant knew that the lipsticks manufactured would be cleared in DTA only. Appeal dismissed - decided against appellant. - APPEAL Nos. E/261-262/2010 - A/87267-87268/2018 - Dated:- 5-9-2018 - Dr. D.M. Misra, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri R.V. Shetty, Advocate, for appellant Ms. Anuradha S. Parab, Assistant Commissioner (AR), for respondent ORDER Per: Dr. D.M. Misra These two appeals are filed against respective orders-in-appeal, since invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed confirming the demand with interest and penalty. Aggrieved by the said order, they filed an appeal before the learned Commissioner (Appeals) who in turn remanded the matter to the adjudicating authority for reconsideration of the issues afresh. In the de novo adjudication, the demand amount has been reduced to ₹ 3,13,015/- with interest and ₹ 2,99,000/- paid by the appellant in December 2003 under protest was appropriated. Aggrieved by the said order, they filed appeal before the learned Commissioner (Appeals) who in turn rejected their appeal. Hence the present appeal. 3. The second appeal filed by the appellant relates to rejection of refund claim of ₹ 2,99,824/- which was paid by them in September 2003 against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permission for advance DTA sale by suppressing the facts inasmuch as they have filed application on 10.7.2001 stating that new product line expansion which will give further support for export of lipsticks . Consequently, the Development Commissioner, SEEPZ, Mumbai, vide letter dated 1.10.2001, in accordance with para 9.9 of Exim Policy (April 1997-2002) authorized the appellant to make DTA sale of the trial production of lipsticks, perfumes and nail polish valued at ₹ 30,60,000/- subject to fulfilment of conditions. It is her contention that the appellant was fully aware of the fact that the lipsticks would never be exported but applied for advance DTA clearances to clear the said product by wrongly availing exemption Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for the items manufactured, viz. lipsticks, perfumes and nail polish, the appellant failed to export the lipsticks. Accordingly, the concessional rate of duty enjoyed by the appellant applying Notification No.2/95-CE dated 4.1.1995 cannot be extended to them. Resisting the said argument, the appellant has contended that the advance sales permission was allowed on the total value of lipsticks, perfumes and nail polish. Therefore, subsequent non-export of lipsticks cannot disentitle them to the benefit of exemption Notification No.2/95-CE dated 4.1.1995 availed at the time of sale of the lipsticks. 8. The facts narrated above are not disputed by either side. The Development Commissioner allowed permission for advance DTA sale to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r manufactured in a 100% EOU.... and allowed to be sold in India under and in accordance with the provisions of sub-paras (a), (b), (d) (h) of Para 6.8 of the Export and Import Policy from so much of the duty of excise leviable thereon under Section 3 of the said Central Excise Act, as is in excess of the amount equivalent to 50% of the aggregate of the duties of customs........ Provided that......... Provided that . Provided also that the exemption under this notification shall not be availed until the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the said goods, including software, rejects, scrap, waste or remnants, - (a) being cleared for home consumption, other than sc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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