ORDER
Jyoti Balasundaram, Member (J)
1. The applications for waiver of pre-deposit of duties and penalties confirmed and upheld in separate impugned orders arise out of the orders of the Commissioner of Central Excise (Appeals), Surat. The issue in dispute is as to what is the applicable rate of duty to DTA sales made against foreign exchange in terms of Para 9.10 of the relevant Exim Policy. The benefit of Notification 13/98-CE dated 02/06/1998 has been denied to the applicants on the ground that their clearances to DTA against payment of foreign exchange was in terms of Para 9.10 of the Exim Policy while Clause (b) of the notification would cover only clearances made in terms of either para 9.9b or 9.20 of the Exim Policy.
2. On hearing both sides we find that identical issues have come up before the Tribunal in the case of Virlon Textile Mills v. CCE, Mumbai – II 2002 (139) ELT 371 in the context of Notification 2/95. The Tribunal has held that sales to DTA against foreign exchange would be treated on the same footing as physical export. In other words the Tribunal has held that the benefit of the notification is available even in the case of clearances to DTA on payment of foreign exchange in terms of para 9.9 of the Exim Policy. The applicants have therefore made out a strong prima facie case for total waiver on the basis of the above case law. We accordingly dispense with the requirement of pre-deposit of the duties and penalties (details of which are given in the annexure to this order) and stay recovery thereof pending these appeals.
Stay Application No.
Appeal
No.
Order-In-Original
No.
Amount
of duty
Amount
of penalty
E/S/1010/03-Mum
E/1573/03-Mum
SRT-V/ADJ-142/2000
dated 30.11.2000
Rs.6,46,289/-
Rs.1,25,000/-
E/S/1011/03-Mum
E/1574/03-Mum
SRT-V/ADJ-143/2000
dated 30.11.2000
Rs.3,16,250/-
Rs.
75,000/-