The Chennai bench of Customs, Excise & Service Tax Appellate Tribunal has held that determination of Domestic Tariff Area (DTA) sale entitlement, ‘deemed export’ by the assessee has to be included.
The appellant, M/s.BAPL Industries Ltd., who are a 100% EOU and engaged in the manufacture of cotton yarn, etc. was found to have cleared goods into Domestic Tariff Area (DTA) beyond their entitlement and without payment of appropriate duty. After due process of law, the original authority confirmed differential duty along with interest and held the goods liable for confiscation. Penalties were also imposed. Aggrieved by such orders, appeal filed before the Tribunal.
The appellant submitted that the quantification of duty on DTA sale has been done without considering DTA sale permitted by the Development Commissioner himself. The adjudicating authority has traversed beyond the SCN and determined the excess DTA sale in a manner which is not put forth in the SCNs. The quantification alleged in the SCN without considering the permitted DTA sale is erroneous. Further submitted that for determination of DTA sale entitlement, the ‘deemed export’ made by the appellant has to be included, but the department has refused to include the deemed exports for DTA sale entitlement.
The Tribunal in the case of Shree Rohini Enterprises held that value of deemed export is to be treated as export sale determined on FOB value of export. The same was confirmed by the Supreme Court also. Hence it is clear that value of deemed export have also to be included for computing (FOB) value of exports. Following the same, the Tribunal observed that the allegation, that appellant has exceeded DTA sale entitlement is without any basis. The demand cannot sustain on merits.
The Coram of Ms. Sulekha Beevi C.S., Member (Judicial) and Sri Raju, Member (Technical) while allowing the appeal has held that “the details of total quantity of goods exported are easily available for verification from the accounts, it cannot be said that appellant had indulged in fraud, collusion, willful misstatement and suppression of facts with intention to evade payment of duty”. Further held that “they have made several requests before the Development Commissioner showing their clearances and to include the deemed exports for computing DTA sale entitlement. On this ground, we find that first SCN for the period 1999-2000 issued invoking the extended period cannot sustain and has to be held as time-barred”.
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