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TMI Blog2022 (7) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Custom Central Excise, Dehradun. M/s. Flex Foods Limited are in appeal against demand of Central Excise Duty on the goods cleared by M/s Flex Foods Limited, 100% EOU to the domestic tariff area. Commissioner of Custom Central Excise, Dehradun is in appeal for enhancement of the penalty imposed. 2 The fundamental charge against M/s Flex Foods Limited is that they have cleared goods in domestic tariff area in excess of the value permitted by the Development Commissioner during various years of operation. The matter earlier came up before Tribunal and it was remanded to Commissioner of Central Excise by order No. 53319-53320/2017 dated 16.05.2017. In paragraphs 2, 3 and 4 of the order dated 16.05.2017 of the Tribunal, the dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /52573/2016-EX[DB] DTA sale has been granted in terms of para 6.8 of the Foreign Trade Policy (2009-14) which reads as under: "Entire Production of EOU/EHTP/STP/BTP units shall be exported subject to following: Units, other than gems and jewellery units, may sell goods upto 50% of FOB value of export, subject to fulfilment of positive NFE, on payment of concessional duties. Within entitlement of DTA sale, unit may sell in DTA, its products similar to goods which are exported or expected to be exported from units. However, units which are manufacturing and exporting more than one product can sell any of these products into DTA, upto 90% of FOB value of export of the specific products, subject to the condition that total DTA sale does not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the adjudicating authority was wrong in confirming the demands on the basis of specific product. He was of the view that demand, if any, is required to be determined at in the light of the permission given by Development Commissioner NSEZ." 3. After examining the above facts, the Tribunal came to the following conclusion: "7. The DTA sale of finished products is permissible in terms of para 6.8 of the FTP 2009-14. The Development Commissioner has granted permissions for DTA sale from time to time on the basis of the export obligation fulfilled by the assessee in various Financial years. The various permissions granted by the 5 E/51809/2015-EX[DB] & E/52573/2016-EX[DB] Development Commissioner are copied below for ready refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. In the permission letter dated 13.04.2012, the goods produced by the EOU have been grouped into three categories and separate value limits specified for each group. 9. As explained supra, the entitlement for concessional duty is required to be evaluated strictly in terms of the various permissions granted by the Development Commissioner. We note that in the impugned order dated 20.02.2015 the method adopted for determining the concessional duty benefit is not in accordance with the specific permissions granted by the Development Commissioner. We also note that the stand adopted by the Ld. Commissioner (A) in the impugned order dated 19.04.2016 is also strictly not in conformity with the DTA permission. 7 E/51809/2015-EX[DB] & E/52573 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not consider it relevant to go into this issue at this stage." 6. It is seen that the Commissioner came to a conclusion that the issue on limitation was not raised by the appellant in their earlier appeal and therefore it was not examined by the Tribunal. M/s. Flex Foods Limited in this appeal has enclosed copy of the appeal earlier filed by them before Tribunal, which was numbered as E/51809/2015- EX [DB]. A perusal of the said appeal shows that the issue of invocation of the extended period and limitation was specifically challenged by the appellant in paragraph 7 of the said appeal memorandum. It is seen that arguments on limitation were also raised by the appellant. The Tribunal, however, did not take note of the said argument nor gave ..... X X X X Extracts X X X X X X X X Extracts X X X X
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