GANDHI FIBRES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) AFTER hearing both sides, and considering that the core issue in this appeal revolves around whether deemed export can be reckoned for considering the DTA quota for a 100% EOU. The Commissioner, vide the impugned order before us, relies on the decision of Sanju Silk Mills Pvt. Ltd. v. CCE, Surat and the Id. Commissioner relies on this decision to come to a conclusion that deemed exports cannot be reckoned and it is only physical exports outside India which has to be considered for the purposes of DTA sales.

(2.) WE have considered at this prima facie stage of waiver of pre deposit, the findings in the case of Sanju Silk Mills Pvt. Ltd. v. CCE, Surat which in para 2 thereof reads as follows :

(3.) IN view of the clear distinction being arrived at by the Learned Bench in the aforesaid case and the constant view of this Tribunal vide Ginni International Ltd. v. Commissioner and in Shabnam Synthetics Ltd. v. Commissioner and after finding that in the notification now under consideration i.e. Notification No. 23/2003, there is no clause analogous to "Taking out of India to a place outside India" and "the free on board value of export" as was observed by the Bench in the case of Sanju Silk Mills Pvt. Ltd. v. CCE, Surat as appearing in notification No. 2/95 -C.E. considered in that case as also, in view of the decisions in the case of Ginni International Ltd. v. Commissioner and Shabnam Synthetics Ltd. v. Commissioner we find at this prima facie stage we have no reason not to consider deemed exports for reckoning the DTA quota. On the other hand, the issues which the Commissioner relies upon, which the ld. D.R. points out from the order, i.e., there was no permission obtained from the Development Commissioner and also deposited any NFE achieved. We find the ld. Advocate has made a submission that the post facto application for approval of DTA removal has been made with the concerned Development Commissioner and that is under consideration by that authority. As regards the positive NFE achievement, the ld Advocate submits that there is no such context in the Show Cause Notice given and or in the impugned order as regards not achieving that. In any case, we find these issues will have to be gone into and heard at the regular hearing. At this prima facie stage, relying on the case of Ginni International Ltd. we find that the appellants have made out a prima facie case to consider removals effected at the rates of duties prescribed vide Notification No. 23/2003 -C.E., dated 31 -3 -2003 to be appropriate. We therefore would order full waiver of pre -deposit amounts required under Section 35F of the Central Excise Act, 1944 to hear this appeal. Stay of recovery of this amount is also ordered.