Customs, Excise and Gold Tribunal - Mumbai
M/S Iqbal Synthetics P. Ltd. vs Commissioner Of Central Excise And ... on 3 September, 2001
ORDER Jyoti Balasundaram, Member (J)
1. In this case the adjudicating authority has confirmed duty demand of Rs.39,79,919/- holding that DTA sales of goods by the application herein did not fall within purview of paragraph 9.9(b) and paragraph 9.20 of the Exim Policy during the relevant period since the applicant did not actually export any goods but only carried out deemed export while under provision of Exim Policy is DTA sales upto 50% of the FOB value of export is permissible. In other words the Commissioner had held that DTA sales is not permissible because it is only actual export which falls within the scope of FOB value of exports, and since the applicants did not carry out any export they were not entitled to sell anything in the Domestic Tariff Area. The Ld. Counsel Shri S. Suriyanarayanan takes us through the relevant provisions of policy of substantiate his contention that since it is only with effect from 1.4.2000 that the expression "physical exports" has been used even deemed exports would come within the meaning of expression occurring in paragraph 9.9(b) of the Policy as it stood prior to 1.4.2000. On the other hand our attention is drawn by Ld. DR to para 1(f) of Appendix 42 where it is made very clear that application for sale of goods and rejects above 5% in DTA as per paragraph 9.9 of the Policy by the EOU's shall be accompanied by statement indicating FOB value of goods actually exported. He therefore submits that the Commissioner has rightly confirmed duty demand in the absence of any actual export during the period in question by the appellants. We see prima facie force in the submission of the Ld. DR having regard to the language of the Policy and therefore we hold that prima facie DTA sale was not permissible in the present case. Next argument is on the point of limitation. This is also a debatable issue, having regard to the fact that the applicants have not prima facie disclosed that during the entire year with which the appeal is concerned they did not carry out any actual export, and even and Chartered Accountant certificate wrongly certifies that goods were actual exported during this period. Therefore prima facie it cannot be said that the notice is barred by limitation. The last plea is of financial hardship but there is no documentary record to substantiate this plea.
2. In these circumstances we hold that no prima facie case for total waiver has been made out by the applicant. We therefore direct predeposit of Rs.20 lakhs towards duty demand out of the total demand of Rs.39,79,919/-. On such predeposit balance duty and the entire penalties shall stand waived and recovery thereof stayed pending the appeal.
3. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without further notice.
4. Time for predeposit is within 8 weeks from today. Compliance to be reported on 16.11.2001.
(Pronounced in Court)