JUDGMENT
Jyoti Balasundaram, Member (J)
1. The adjudicating authority has confirmed duty demand of Rs. 81,42,548/- and penalty of Rs. 81,42,5487- in the case of M/s. Cadilac Textiles and Rs. 30,14,029/- towards duty and penalty of Rs. 30,14,029/- in the case of M/s. Fancy Synthetics holding that DTA sales of goods by the applicants herein did not fall within the purview of Para 9.9(b) of Exim Policy during the relevant period since they did not actually or physically export any goods but only carried out deemed export while under the provisions of the Exim Policy, DTA sales up to 50% of the FOB value of the export is permissible and the Commissioner has taken the view that DTA sale is not permissible because it is only actual exports which fall within the scope of FOB value of the exports.
2. We find that in the case of Ginni International Ltd. v. CCE, Jaipur [2002 (139) E.L.T. 172 (Tribunal) = 2001 (47) RLT 412] the Tribunal has held that once the Development Commissioner has allowed permission to sell the goods upto a fixed value in the DTA, the Revenue cannot disallow the clearance and demand duty on the ground that the entitlement was required to be restricted to 50% of the FOB value of physical exports. The Bench has held that if the Revenue was of the view that the value of deemed export should not have been taken into consideration in arriving at the value of goods to be allowed to be sold in the DTA, the matter should have been taken up with the Development Commissioner who had initially accorded the permission to the appellants. Since the issue in dispute in the present cases has been settled by us in many decisions, the applicants have made out a prima facie case on merits of the matter. We, therefore, dispense with the pre-deposit of duty and penalty amounts and stay recovery thereof pending the appeals.