9911796707
TMI Blog2019 (7) TMI 1799X X X X Extracts X X X X X X X X Extracts X X X X ..... s available on record show that permission of DTA clearances was given under para 6.8 (k) of FTP 2004-2009 which required them to restrict these clearances up to 50% of the FOB value of their export. Two letters dated 16/11/06 and 27/06/07 of Development Commissioner addressed to the noticees are available on case record which show that DTA clearance was given in term of 6-8 (K) - The noticee however dispute this allegation on the ground that the condition envisaged in para 6.8(k) was not at all applicable to them in as much their claim to make DTA clearance of jute yarn was covered under another condition under para 6.8(h) which did not require them to limit their DTA clearance but instead required achievement of positive NFE. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds:- (i) The Adjudicating Authority did not mention in the Order-in-Original as regards evidence of the assessee's achieving positive NFE. The assessee also did not mention in their submission as to what kind of documents they produced in support of their achievement of positive NFE and the Adjudicating Authority is silent about such document and type of verification conducted by the Department in this regard. (ii) The assessee obtained permission from the Development Commissioner for DTA sale under Para 6.8(k) of FTP 2004-09 whereas they affected DTA sale actually under Para 6.8(h) of FTP 2004-09. The Adjudicating Authority did not mention whether any verification was conducted to ascertain that the Development Commissioner accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date 11.08.2008 and subsequent corrigendum dated 04.12.2008 Period November 2006 to June 2008 Duty Demand ₹ 5,06,18,918.00 19.01.2009 July 2008 to 20th October 2008 1,21,54,218.00 Total - 6,27,73,136.00 6. The adjudicating authority dropped the proceedings initiated by the above two show cause notices. Hence the present appeal before the Tribunal. 7. The learned Authorized Representative appearing on behalf of the appellant department submits that the concessional rate of duty as prescribed under Notification No.23/2003-CE dated 31.03.2003 is not applicable in the present case since the goods were not cleared to the DTA in accordance with the provisions of FTP 2004-09 or following the conditions as laid down in the Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to pay duty under Section 3 of the Central Excise Act, 1944 for making DTA clearance of jute yarn in contravention of para 6.8 of Foreign Trade Policy, 2004-2009 and thereby forfeiting claim of exemption under notification No.23/03 dated 01/03/03 vide its entry serial No.16 and condition 10. This contravention was high lighted in the show cause notices by showing that their DTA clearances were far in excess of 50% of the FOB value of their export. Correspondences available on record show that permission of DTA clearances was given under para 6.8 (k) of FTP 2004-2009 which required them to restrict these clearances up to 50% of the FOB value of their export. Two letters dated 16/11/06 and 27/06/07 of Development Commissioner addressed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 6.8 (h) is liable to be accepted.
I find exemption under notification No.23/03 dated 01/03/03 can be denied only if it shown that they have violated FPT conditions. The, notice have however proved that they have complied with its conditions and were not required to restrict their DTA clearances vis a vis their export. There is no allegation in the notice that for manufacturing jute yarn they used as imported raw materials.
The show cause cum demand notice is therefore not sustainable."
10. We do not find any ambiguity in the impugned order and accordingly the same is sustained.
The appeal filed by the department is rejected.
(Operative part of the order was pronounced in the open Court.) X X X X Extracts X X X X X X X X Extracts X X X X
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