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TMI Blog2022 (4) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... .06.2003, who conducted various checks and verifications. As a result, shortage of 52436.500 kg. raw material was detected. Shri Altaf Aman Bagad Partner of the appellant unit, confessed that short found goods stand cleared by them without payment of duty to M/s Mukesh Textiles, Surat and M/s LT Textiles, Surat on cash basis. The officers seized records/ documents and 10 kachha delivery challans. Statement of Shri Salim Abdulla Naviwala, Supervisor of Appellant's firm was also recorded.In follow-up investigation, premises of M/s L T Textiles, Surat and M/s Mukesh Textiles, Surat were searched. 1.2 On the basis of scrutiny of documents seized under panchnama dated12.06.2003, it was revealed that Appellant had cleared 3,04,463.50 L. Mts of "Polyester Grey Fabrics" during the period from 05.05.2003 to 14.05.2003 to M/s Uma Textiles Processors (100% EOU), without payment of duty against the CT-3 as deemed export. Statement of Chandresh Kishan Bhai Dhandha, Proprietor of M/s Uma Textiles Processors was recorded wherein he stated that they had received "Polyester Grey Fabrics from the Appellant against the CT-3 and they never received "Knitted Grey Fabrics" from the appellant. The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 72(1) read with proviso to Section 28(1) of the Customs Act, 1962. (vi) Demand of Customs duty amounting to Rs. 1,08,733/- forgone on procurement of 1676.58 Kgs. of imported PTY under Section 72(1) read with proviso to Section 28(1) of the Customs Act, 1962. (vii) Demand of Central Excise Duty equal to the aggregate of Customs Duties amounting to Rs. 37,72,323/- forgone on the procurement of 1,04,910.10 Kgs. of Polyester Texturised Yarn under proviso to Section 11A(1) of Central Excise Act, 1944 read with Notification No. 22/03-CE dated 31.03.2003 (viii) Interest at the appropriate rate, in respect of the Custom Duty mentioned at (ii),(iii),(v) and (vi) mentioned above under Section 72 read with Section 28AB of the Customs Act, 1962 (ix) Interest at the appropriate rate, in respect of the Central Excise Duty mentioned at (i),(iv) and (vii) mentioned above under Section 11AB of the Central Excise Act, 1944. (x) Confiscation of 7,905.350 Kgs of Indugenous Polyester Texturised Yarn valued at Rs. 5,05,943/- and 3,04,463.50 L Mtrs of Polyester Knitted Grey Fabrics valued at Rs. 66,98,197/- under Rule 25 of the Central Excise Rules, 2002 and impose collective redem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had by letter dated 10.12.2007 informed the department of change of address. The Show Cause Notice dated 31.03.2008 being subsequent to the intimation of change address given on 10.12.2007, ought to have been served on the Appellant at the said changed Address in the manner provided under Section 37C(1) (a) of the Central Excise Act 1944 (Section 153 (1)(a) of Customs Act 1962). The Notice could not have been served under Section 37 C(1) (b) by allegedly pasting on the factory gate. Since the Show Cause Notice was not served at the changed address as provided in Section 37C(1) (a) of the Central Excise Act 1944 (Section 153(1) (a) of Customs Act 1962)., within the normal period of limitation of one year nor the extended period of limitation of Five years, the duty demands are barred by time and on this ground itself, the entire impugned Order-In-Original is liable to be set aside. He placed reliance on the decision of the Hon'ble Bombay High Court in the case of DharampalLachand Chug Vs CCE - 2015(323) ELT 753 (Bom), Benu Prabhakar Vs CCE 2021 (11) TMI 553 /2022-TIOL-10-CESTAT-DEL and Ram Nivas Singh Contractor Vs CCE - 2019 (24) GSTL -451. 2.2 On merits he submits that the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CT-3 to Uma Textile Processors. There is no evidence of any buyer in the domestic market to whom clearance was made of 3,04,463.50 L. Mtrs of Polyester Knitted Grey Fabrics, no evidence of any transportation of the same, no evidence of any payment received from any buyer in the domestic market. Similarly, there is no evidence of purchase of the said quantity of Polyester Grey Fabrics by the Appellant from the market. Thirdly, the reliance placed on the statement dated 26.06.2003 of proprietor of Uma Textiles Processors that what was received by them was not Knitted Grey Fabrics is untenable in law since he has not been examined in the adjudication proceeding under Section 9D of the Central Excise Act 1944 and thereby the Appellants have been denied the opportunity of cross- examining him. In the circumstances, Central Excise Duty demand on 3,04,463.50 L. Mtrs of Polyester Knitted Grey Fabrics and Customs duty demand on imported raw materials and Central Excise Duty on indigenous raw material used in manufacture of said 3,04,463.50 L. Mtrs of Polyester Knitted Grey Fabrics, are clearly untenable in law. 2.5 Without prejudice, he also submits that in any event, it is settled law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and is required to be discharged effectively. Clandestine removal cannot be presumed merely because there was shortages of the stock or on the basis of statement of person only. In Majority decision in the case of Tejal Dyestuff Industries as reported in 2007 (216) E.L.T. 310 (Tri) Tribunal held that the Revenue cannot make its case on the basis of statement alone in the absence of any independent evidence to corroborate the same. The said decision was confirmed by Hon'ble High Court of Gujarat as reported in 2009 (234) E.L.T. 242 (Guj.), when the appeal filed by the Revenue was dismissed. Further, Tribunal in the case of CCE v. Luxmi Engineering Works as reported in 2001 (134) E.L.T. 811 (Tri.-Del.), has held that there being no corroborating evidence in the form of receipt of raw materials or sale of final products to each buyers, the allegations of clandestine removal cannot be upheld. The said decision was upheld by Hon'ble High Court of Punjab & Haryana as reported in 2010 (254) E.L.T. 205 (P & H), laying that even if some records recovered during raid and corroborated by some supportable evidence for attempt of clandestine production and removal, it is necessary to have som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verted. Further, the cross-examination of Shri Ashwani Kapoor, Inspector on 3rd August, 2006 explaining that wastage on each stage of production have not been considered by the Adjudicating Authority. Moreover, the Knitwear Club, Ludhiana which is an independent body have also stated in their letter dated 19 May, 2005 that in normal course, there is a wastage of around 40% same has also not been considered by the Adjudicating Authority but without bringing any corroborative evidence apart from statement of Shri Baldev Singh demand has been confirmed. Such a situation has been dealt by this Tribunal in the case of KlenePaks Ltd. v. CCE, Bangalore-I (supra), wherein the facts of the case are as under :- "2. The relevant facts that arise for consideration are appellant-company herein are manufacturers of HDPE/PP, woven fabrics, sacks. The appellant-company availed Cenvat credit of the duty paid on HDPE/PP granules purchased from various manufacturers like M/s. GAIL; M/s. Reliance Industries Ltd; M/s. HPCL etc. The officers of the DGCEI visited their factory and carried out various investigations. First show cause notice dated 4-7-2003 was issued directing one of the appellant-compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CCE, Cus. & Ser. Tax, Daman v. Nissan Thermoware P. Ltd. (supra), the Hon'ble Gujarat High Court has observed as under :- "7. Thus, on the basis of findings of fact recorded by the Tribunal upon appreciation of the evidence on record, it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the circumstances, on the basis of the material available on record, it is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the assessee". and thereafter the Hon'ble Gujarat High Court has held that the confessional statement of an accused in criminal offence which cannot be par with the statement recorded during preventive checks, therefore, the Hon'ble High Court has set aside the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the statements of the partners that there was clandestine removal of the finished goods, there is nothing on record to indicate that the appellant assessee had, in fact, manufactured the final products out of the inputs detected short on the calculation of input-output ratio. I find that as correctly pointed out by the ld. Counsel that this Bench in the case of Suzlon Fibres Pvt. Ltd. (supra), in Para 3 has categorically stated as under : "3. We agree with the above contention of the ld. Advocate, apart from the input-output ratio, there is no evidence on record to show clandestine manufacture and clearance of the goods. Such cases are required to be established beyond doubt on the basis of concrete and positive evidences. We accordingly set aside the impugned order and appeals are allowed with consequential relief." 17. My view as regards there cannot be allegation of clandestine removal unless there is an evidence to indicate that there was clandestine manufacturing, is fortified by the judgment of Hon'ble High Court of Gujarat in the case of Nissan ThermowarePvt. Ltd., wherein their Lordship have held as under : "7. Thus, on the basis of findings of fact recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice and confirmed by both the authorities below". which has been affirmed by the Hon'ble Apex Court. 11. In this case also, we find that the case has been made out only on the basis of the statement of Shri Baldev Singh, Managing Director of the appellant and no other evidence in the form of to manufacture of such huge quantity, the consumption of electricity, additional packing material, payment for purchase of additional packing material, payment received for clandestine removal of goods, how the goods were transported has been brought on record by the Adjudicating Authority or the inspecting team, therefore, relying on the said decision cited hereinabove, we hold that charge of clandestine removal is not sustainable in the absence of any corroborative evidence to the statement of Shri Baldev Singh, Managing Director. 12. In these circumstances, we set aside the impugned order and allow the appeals filed by the appellants with consequential relief. In case of TGL Poshak Corporation Vs. CCE 2002 (140) ELT 187 (TRI), the tribunal held as under : "5. Heard Ld. SDR, Shri G.S. Menon, who reiterates the departmental view. He contends that there are statements and several r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the submission and perused the impugned order. Insofar as the assessee's appeal is concerned, we notice from the extracted portion of the Commissioner's order that Revenue is solely relying on the exercise note books mainly balance steets. The Tribunal in large number of cases which have already been noted above in the tabulated list of citations furnished by the Counsel has held that unless there is clinching evidence on the nature of purchase of raw materials, use of electricity, sale, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of note books maintained by some workers. The facts in the case of Aswin Vanaspati Industries would be identical to the facts herein as in that case also the allegation was with regard to removal of Vanaspati based on the inputs maintained. The Tribunal went in great detail and have clearly laid down that unless department produces evidence, which should be clinching, in the nature of purchase of inputs and sale of the final product demands cannot be confirmed based on some note books. A similar view was expressed by the Tribunal in the other judgments noted supra. The citations placed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable. 4.3 We also find that the Appellant disputed the impugned demand confirmed on the basis of statements recorded during the investigation. It is settled preposition of law that the said statements cannot be relied upon as admissible evidence in absence of examination during the adjudication proceedings as required by Section 138B of the Customs Act 1962 (Section 9D of Central Excise Act 1944). The Hon'ble Chhattisgarh High Court in the matte of Hi Tech Abrasives Ltd. Vs Commissioner of C.Ex&Cus., Raipur held that : "9.5 Undoubtedly, the proceedings are quasi criminal in nature because it results in imposition of not only of duty but also of penalty and in many cases, it may also lead to prosecution. The provisions contained in Section 9D, therefore, has to be construed strictly and held as mandatory and not mere directory. Therefore, unless the substantive provisions contained in Section 9D are complied with, the statement recorded during search and seizure operation by the Investigation Officers cannot be treated to be relevant piece of evidence on which a finding could be based by the adjudicating authority. A rational, logical and fair interpretation of procedure cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Besides the Managing director of the Company of his own volition deposition the amount of Rs. 11 lakhs towards excise duty and therefore in the facts and circumstances of the present case, the aforesaid statement of the Counsel for the Respondents cannot be accepted. This fact clearly proves the conclusion that the statements of the concerned persons were of their volition and not outcome of any duress." Accordingly, on the first and second question of law, we hold that the statement of the Director could not be treated as relevant piece of evidence nor could be relied upon without compliance of Section 9D of the Act. The two questions of law accordingly, stand answered in that manner. 4.4 Similarly in the matter of Basudev Garg Vs Commissioner of Customs reported at 2013(294) ELT 353 (Del.) the Hon'ble Delhi High Court held as under : "9. We have considered both the aspects of the matter and have heard counsel of both sides. The learned counsel for the appellants have placed reliance on the decision of the Supreme Court in the case of Swadeshi Polytex Ltd. v. Collector reported in 2000 (122) E.L.T. 641 (S.C.) as well as on Lakshman Exports Limited v. Collector of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entical to the provisions of Section 138B of the Customs Act, 1962 which would be applicable in the present case. 12. Section 138B of the Customs Act, 1962 reads as under :- "138B. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) When the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable or (b) When the person who made the statement is examined as a witness in the case before the court and the court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. (2) The provisions of sub-section (1) shall so far as may be apply in relation to any proceeding under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Noticee would have a right to cross-examine the persons whose statements are being relied upon even in quasi judicial proceedings. The Division Bench also observed as under :- "29. Thus, when we examine the provision as to whether the provision confers unguided powers or not, the conclusion is irresistible, namely, the provision is not uncanalised or uncontrolled and does not confer arbitrary powers upon the quasi judicial authority. The very fact that the statement of such a person can be treated as relevant only when the specified ground is established, it is obvious that there has to be objective formation of opinion based on sufficient material on record to come to the conclusion that such a ground exists. Before forming such an opinion, the quasi judicial authority would confront the assessee as well, during the proceedings, which shall give the assessee a chance to make his submissions in this behalf. It goes without saying that the authority would record reasons, based upon the said material, for such a decision effectively. Therefore, the elements of giving opportunity and recording of reasons are inherent in the exercise of powers. The aggrieved party is not remediles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble High Court in the the case of Continental Cement Company v. Union of India reported in 2014 (309) E.L.T. 411 (All.), it was held as under : "12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out finished product receipt details from regular dealers/buyers. (vi) To find out the excess power consumptions." 4.7 In view of above, we find that no demand is sustainable merely on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yester Grey Fabrics". We also agree with the argument of Ld. Counsel of Appellant that description "Polyester Grey Fabrics" is a generic description and is wide enough to cover "Polyester Knitted Grey Fabrics" also. We also find that in the present matter Appellant had received payment for the said transaction by cheque and the said transaction were recorded in statutory books & accounts of the Appellant. 4.9 We, further find that in support of their contention department nowhere produced any corroborative evidence to show that the Appellant has cleared 3,04,463.50 L. Mtrs of Polyester knitted Grey Fabrics illicitly in domestic market and to adjust the stock, Polyester Grey Fabrics were purchased from the market and supplied against the CT-3 to Uma Textiles Processors. No statement of any buyer recorded to whom clearance was made, no transportation details provided, no evidence of any receipts of payment from domestic buyers produced, no statement of supplier of alleged "Polyester Grey Fabrics " produced, not a single buyer from domestic market produced by the department to show that the Appellant has cleared illicitly alleged quantity of " Polyester Knitted Grey Fabrics" to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he receipt of one of the raw materials, does not conclusively prove clandestine manufacture and surreptitious removal of finished final product. Further, since the charge is regarding clandestine manufacture and removal of finished product for evading excise duty, the same cannot be held to be proved on the basis of principle of preponderance of probabilities and the Revenue has to prove the same beyond doubt. The reference is answered accordingly. 4.10 In the matter of M/s. Sakeen Alloys Pvt. Ltd. v. C.C.Ex. 2013 (296) E.L.T. 392 (Tri.) which was upheld by the Gujarat High Court [2014 (308) E.L.T. 655 (Guj.) and subsequently by the Hon'ble Supreme Court reported at [2015 (319) E.L.T. A-117 (S.C.)]. The Tribunal held that :- "5. We have carefully gone through the rival submissions and perused the records. In this case, the case of clandestine removal has been made out against the appellant M/s. Sakeen Alloys Pvt. Limited on the basis of records/pen-drive recovered from the business premises of M/s. Sunrise Enterprises. In the statements of Managing Director and the Excise persons of M/s. Sakeen Alloys Pvt. Limited and Shri Mukeshbhai V. Patel of M/s. Sunrise Enterprises it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the department but no enquiry was conducted at the supplier's end to establish that excess materials in fact were supplied to the appellants. Similarly, no investigation has been extended to the buyers of the finished goods whose names are in the records/pen-drive of M/s. Sunrise Enterprise. This part of the investigation was necessary to establish that clandestinely removed goods have reached to the buyers and they have confirmed to have received such goods. Appellants herein have filed affidavits from some of such buyers which the adjudicating authority has not accepted. It would have been in the interest of justice to call some of these purchasers for cross-examination so that true picture of the entire activities undertaken by the appellants was made clear. Appellants also requested for cross-examination of the Chartered Engineer who gave them the certificate regarding manufacturing capacity and consumption of electricity. 8. In the cases relating to clandestine removal of excisable goods, following are the indicators of clandestine removal activities by a manufacturer :- (i) Excess stock of raw materials found in the factory premises. (ii) Shortage of raw materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d removal but there should be some positive evidence suggesting clandestine production and removal. The Hon'ble Supreme Court in the case of Shalimar Rubber Industries v. Collector of Central Excise, Cochin [2002 (146) E.L.T. 248 (S.C.)] has also held that once the statement is retracted and the assessee asked for cross-examination then if such cross-examination is denied, the department cannot make such statements as the basis for concluding that there was clandestine removal. It is further observed that the Hon'ble CESTAT in the case of Rama Shyama Papers Limited v. CCE, Lucknow [2004 (160) E.L.T. 494 (Tri.-Del.)] came to the following conclusion in Paras 9 and 10 of the judgment which are reproduced below :- "9. We have considered the submissions of both the sides. The Revenue has charged the Appellants with clandestine manufacture and removal of paper mainly on the basis of documents seized from the premises of Chitra Traders and Transporters and the various statements recorded from the Proprietor of Chitra Traders, transporters and labourers working in the factory of the Appellants and also the driver or cleaner of the Truck which was in the process of loading on 22-6-2001 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has in the case of Emmtex Synthetics Ltd., supra, when the charge of clandestine removal was made against the Appellants therein out of yarn received from a third party based on the diary, loose documents and packing slips allegedly recovered from Shri B.M. Gupta, Vice President of the Supplier Company, held that "no presumption on the basis of uncorroborated, uncross-examined evidence of B.M. Gupta and the alleged entries made by him in the private diary, loose sheets, charts, packing slips could be drawn about the receipt of polyester yarn by the Appellants from the company, M/s. HPL, in a clandestine manner during the period in question. Similarly, no inference could be legally drawn against the Appellants of having manufactured texturised yarn out of the said polyester yarn and the clearance thereof, in a clandestine manner without the payment of duty." The Tribunal had also referred to the decision in Oudh Sugar Mills Ltd. v. Union of India, 1978 (2) E.LT. (J172) wherein "the Apex Court has observed that no show cause notice or an order can be based on assumptions and presumptions. The findings based on such assumptions and presumptions without any tangible evidence will be vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en able to adduce any corroborative evidence to show the movement of goods from the premises of the Appellant-company to the premises of M/s. Chitra Traders or the Customers whom the goods were sent directly to as per the direction of Chitra Traders. No inquiry has also been made into these Customers who ultimately received the goods. There is no substance in the reasoning given by the Commissioner in the impugned order to the effect that "as the party did not challenge the fact of their business association with M/s. Chitra Traders, Delhi, the enquiry further down the line was not considered necessary." The onus of proof that the goods were removed by the Appellants without payment of duty and without entering the same in their records is upon the Revenue which cannot be discharged merely on the strength of the entries made in the records of a third party without linking the removal of goods from the premises of the Appellant-company. The mere fact that the Appellant-company had business relation with Chitra Traders, does not mean that they will be liable to each and every entry made by Chitra Traders in their books of account. It is also noted that none of the transporters and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes essential. As already mentioned above, the stock lying in the stock yard of M/s. Sunrise Enterprise, Mehsana was found containing the goods received from M/s. Sakeen Alloys Pvt. Limited under proper invoices. When the goods received under proper invoices are found in the stock yard of M/s. Sunrise Enterprise, then it is possible that out of such goods certain quantities were sold to various customers by accepting payment in cash. In such a situation, the quantification undertaken by the investigation becomes doubtful and incorrect. For this purpose cross-examination of the person Incharge looking after the records of M/s. Sunrise Enterprise was must, which was not allowed by the adjudicating authority. In view of the above observations, the demand of duty of Rs. 1,85,10,861/- is not sustainable and is required to be set aside." 4.11 We also find that Tribunal in the case of CCE v. Luxmi Engineering Works as reported in 2001 (134) E.L.T. 811 (Tri.-Del.), has held that there being no corroborating evidence in the form of receipt of raw materials or sale of final products to each buyers, the allegations of clandestine removal cannot be upheld. The said decision was upheld by Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the alleged goods is not sustainable in the present matter. 4.15 Without prejudice to the above finding, we also find that once the CT-3 certificate was issued the duty liability if at all arises stands shifted to the recipient who has issued the CT-3certificate and the appellant's clearances are covered by CT-3 is not chargeable to duty. The Tribunal in case of Santogen Textile Mill Ltd. v. CCE, Mumbai-II,2007 (214) E.L.T. 386 (Tri. - Mumbai), has held that in cases where the 100% EOU has diverted the duty free procured goods to the market, instead of bringing the same in his factory, the manufacturer cannot be fastened with any liability in as much as he loses control over the goods so as to ensure safe reach of the same with the consignee. It is the 100% EOU, who has entered into a bond with the Asstt. Commissioner for proper accountal of receipt, storage and utilization of such goods and to pay, on demand, an amount equal to the duty leviable on the goods, if the same are proved not to have been used in connection with the production of the goods for export purposes. Similarly, in case of CCE, Cochin v. BPL Systems & Projects Ltd. - 2002 (144) E.L.T. 437 (Tribunal), it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y used in finished products which were cleared to DTA in contravention of provisions of law. Such raw materials, which were imported by availing the benefit of notification No. 53/97-Cus. dt. 3-6-97, should have discharged the duty. 5. After hearing the ld SDR, we find that the main issue involved relates to the determination of FOB value of export to arrive at the quantum of eligible domestic clearances and whether the same should include only physical export or it should include deemed export as well. If deemed exports are held to be not included, then the quantum of clearances permitted in DTA will be accordingly reduced. This issue has been decided by the Tribunal in favour of the assessee on a number of precedent decisions, holding that the value of deemed export should be included while determining the FOB value of export, based on which DTA clearances are permitted. However, in this case, the assessee is not in appeal before us. The duty on finished goods stands demanded on the ground that the same is in excess of the permissible limit for the purpose of DTA clearance. The department's claim is to the effect that the raw material used in such finished products cleared in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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