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2019 (7) TMI 1786 - AT - Central Excise100% EOU - short realisation in positive Net Foreign Exchange (NFE) - eligibility of breakage loss in transit (normal loss) - HELD THAT:- As per Notification No. 52/2003-Cus., a 100% EOU is required to achieve positive NFE. It is further provided that in case of failure to achieve the said positive NFE, the duty equal to the portion of the duty leviable on the said goods but for the exemption contained in this notification, and the duty so payable, shall bear the same proportion as the unachieved portion of NFE, alongwith interest. Further, admittedly the appellant have produced BRC’s in support of full realisation of the export proceeds after allowing discount for brokerage in transit or genuine quality dispute, raised by the buyer. Further, appellant has demonstrated in the course of hearing that they have achieved positive NFE for each of the financial year during the period 2011-12 to 2015-16, the period under dispute. Thus, the finding of the Commissioner (Appeals) that as per Notification No. 52/2003-Cus, the proportionate benefit is recoverable if export proceeds are not realised is erroneous. Allowing of discount for damage in transit or quality dispute is normal loss in the facts and circumstances. Normal loss does not require any special treatment nor is required to be booked as a loss. Thus, there is no case of short realisation of export proceeds in the facts and circumstances - Appeal allowed - decided in favor of appellant.
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