KURT-O-JOHN SHOE COMPONENTS Vs. CCE

JUDGEMENT

(1.) In this Appeal filed by M/s. Kurt -o -John Shoe components (India) Pvt. Ltd. whether the clearances effected under Paragraph 9.10 (b) of the EXIM Policy 1997 -2002 has to be taken into consideration for the purpose of determining the limit of sale of goods by a 100% Export Orented Undertaking into Domestic Tariff Area.

(2.) Shri J.M. Sharma, learned Consultant, submitted that the Appellants is a 100% Export Oriented Undertaking approved to manufacture and export soles, heels, tops lifts and emblems, hat Para 9.10 (b) of the EXIM Policy provides that supplies from 100% Export Orented Undertaking effected into D.T.A. against payment in foreign exchange shall be counted towards fulfillment of export performance; that the Appelants have supplied goods into DTA against payment in foreign exchange on payment of full Central Excise duty and such supplies were counted towards fulfillment of export performance and were considered as export for all purposes by the Appellants; that in accordance with tha law and procedure prescribed in the EXIM Policy read with Handbook of Procedure, the Development Commissioner, NOIDA Export Processing Zone granted permission for sale of approved items in terms of Para 9.9 (b) of EXIM Policy subject to payment of applicable duties and against the export performance of the appellants: that the Commissioner under the impugned Order had demanded the Central Excise duty and imposed penalty of eqivalent amount on the ground the FOB value of export is determined by taking the value of physical export and sales made to specified private bonded warehouse and that term export used in Notification No.2/95 -C E dated 4.1.95 is to be construed as defined in Central Excise Act and Rules made thereunder; that as per Rules 12 and 13 of the Central Excise Rules, 1944, export means the clearances of the goods wich left the country which is also known as physical export; that the Commissioner has further held that for the purpose of Notification No. 2/95 -C E, only the physical exports are to be taken for determination of FOB value.

(3.) Learned Consultant, further sumitted that the issue involved is fully covered by the decision of the Tribunal in the case of Ginni International Ltd. Vs. CCE, Jaipur 2001 (47) RLT 412 wherein the Tribunal has held that once the Development Commisioner has alowed them the permission to sell the goods up to a fixed value in DTA, the revenue cannot disallow the clearance and demand the Central Excise duty on the ground that the entitlement was required to be restricted to 50% of FOB value of physical exports; that the Trbunal observed that the Revenue is of the view that the value of the deemed exports should not have been taken into consideration for arriving at the value of the goods to be alloed to be sold in the DTA, he matter should have been taken up with the Development Commissioner who had initially accorded the permission to the Appellant. He also relied upon the decision in the case of Virlon Textile Mills vs. CCE Mumbai 2002 (50) RLT 349 (CEGAT) wher in the Tribunal had held that the supplies made by the Appellants in domestic tariff area against the payment in foreign exchange will be deemed, for the purpose of Para 9.9, to have been exported. He, further, said that these decisions have been consistently followed by the Tribunal in a number of cases and one of such case in Morgaon Tetronics Ltd. vs. CCE NOIDA, 2003 (55) RLT 26 (CEGAT).