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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 ..... ding 3303 and 3304 of Central Excise Tariff Act, 1985. They were issued a Letter of Acceptance (LOA) by the Joint Development Commissioner to operate as an 100% EOU and also necessary permissions were granted under Section 78 of the Customs Act, 1962 for carrying out in bond manufacturing activity by the Central Excise and Customs Department. Also, the appellants were granted an advance DTA permission vide letter dated 1.10.2001 as per the provisions laid down under para 9.9(b) of Export-Import Policy (1997-March 2002) for sale of items lipsticks, perfumes and nail polishes of a total value of Rs. 30,60,000/- in DTA, subject to the conditions mentioned thereunder. Consequently, the appellant cleared the said goods viz. perfumes, lipsticks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, therefore, the condition laid down in para 9.9(b) of the EXIM Policy has been complied with. It is his contention that, therefore, the benefit of exemption Notification 2/95-CE dated 4.1.1995 cannot be denied. It is his further contention that since the advance DTA sale permission was granted for three products and there was no bifurcation of the product to export for each category and all these products belong to the same category, hence, any of the products or all of the three products together could be sold in DTA and the only condition that has to be adhered to is that the aggregate value of the products should not exceed the value prescribed under the DTA sale permission. He has further submitted that on the basis of the export of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction instead of exporting of lipsticks. The appellant had also asked for permission to ex-bond two jacketed mixing tanks (used for the manufacturing of lipsticks) and to clear the raw material purchased for the manufacture of lipsticks in DTA as the said vessels and goods were lying idle owing lack of export orders for lipsticks. Therefore, the authorities below have rightly denied the benefit of exemption Notification No.2/95-CE dated 4.1.1995, as the appellant had failed to comply with the conditions laid down under third proviso to the said notification. Since the appellant had misdeclared and suppressed the facts, therefore, show cause notice was issued to them for recovery of the differential duty on the quantity of lipsticks clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction line giving further support to export of lipsticks. The said permission was accorded to the appellant by the Development Commissioner subject to the provisions laid down under para 9.9(b) of Exim Policy (April 1997- March 2002) read with para 1(g) for sale of goods in the DTA by EOU units prescribed in Appendix 42 of Handbook of Procedures, 1997-2002. The adjudicating authority referring to para (g) and (h) of Appendix 42 of Handbook of Procedures, recorded that the advance DTA sales permission in respect of trial production is allowed in cases of capacity expansion/product diversification. The appellant in the present case obtained the said permission of sale of lipsticks in DTA, making a representation that such permission would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreting the said proviso, observed that since the appellant failed to comply with the conditions of the notification. Therefore, they are not entitled to concessional rate of duty allowed under the said notification. We do not find discrepancy in the said reasoning of the learned Commissioner (Appeals). As to be eligible to the benefit of notification, the assessee has to discharge the burden that their case falls within the four corners of the conditions prescribed in availing the benefit of the exemption notification. This principle has been laid down by the Hon'ble Supreme Court recently in the case of CC(I), Mumbai vs. Dilip Kumar & Company - 2018 (361) ELT 557 (SC). Therefore, the demand has been rightly confirmed against the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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