MORGAON TETRONICS LTD. Vs. CCE, NOIDA

JUDGEMENT

(1.) M/s. Morgon Tetronics Ltd. have filed this appeal being aggrieved with the Adjudication Order No. 50/2002 dated 27.2.2002 passed by the Commissioner (Appeals) confirming the demand of Central Excise duty in respect of sales made to Domestic Tariff Area (D.T.A). Shri J.M. Sharma, learned Consultant, submitted that the Appellants is a unit located in the Noida Export Processing Zone (NEPZ); that during the period in dispute, the items manufactured by them were deemed exported by sale in DTA against payment in foreign exchange and on payment of full import duty as permitted under Para 9.10(b) of EXIM Policy; that the Development Commissioner, NEPZ, who is the proper authority, worked out their DTA sale entitlement after taking into consideration data verified by the Chartered Accountant and Customs Authorities as per Para 9.9(b) of EXIM Policy and guidelines provided in Appendix 42 of Handbook of Procedure; that after obtaining the necessary permission from the Development Commissioner, they cleared the goods to DTA under Notification No. 2/95 on the basis of pre -assessed AR -I forms; that the Deputy Commissioner, under Adjudication Order No. 7/2001 dated 28.7.2001, has demanded Central Excise duty on the ground that DTA sale entitlement would accrue only against physical exports and partial exemption on DTA clearances under Notification No. 2/95 -CE, dated 4.11.1995 was available only against the physical exports and that during 1999 -2000 the Appellants had not effected any physical exports.

(2.) The learned Consultant, further, submitted that Notification No. 2/95 -CE exempts excisable goods produced or manufactured in a EOU/FTZ unit and allowed to be sold in India in accordance with the provisions of sub -paragraph (a), (b), (c) & (d) of Paragraph 9.9 or Paragraph 9.20 of the Export & Import Policy - -1997 -2002; that the Development Commissioner is the statutory authority to allow sales in DTA: that all clearances have been made by them in accordance with written permission granted by the Development Commissioner; that the issue stands settled by the decisions of the Tribunal in Virton Textile Mills v/s. CCE, Mumbai -III, : 2002 (139) ELT 371 (T) and Ginni International Ltd. v/s. CCE, Jaipur,, 2001 (47) RLT 412 (CEGAT). He also mentioned that though the Supreme Court has admitted the appeals against both the decisions as reported in, 143 ELT A176 and, (145) ELT A64, the Supreme Court has not granted any stay to the Revenue.

(3.) Countering the arguments, Shri Jagdish Singh, learned DR, reiterated the findings of both the lower authorities. We have considered the submissions of both the sides. The Revenue has not disputed that the impugned goods manufactured by the Appellants were removed to D.T.A. availing the benefit of Notification No. 2/96 -CE on the strength of permission granted by the Development Commissioner, NEPZ. The learned Consultant has rightly submitted that issue involved in present appeal is squarely covered by the decision of the Tribunal in Ginni International Ltd. wherein it has been held as under: