TMI Blog2014 (7) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... year-to-year basis. In the present case, the demand pertains to the year 2003-04 and 2004-05 - The condition of the notification is that the appellant should have achieved positive NFE. It is for the appellant to prove achievement of positive NFE before claiming the benefit of exemption. In the present case, the appellant has not fulfilled this condition - appellant has not made out a prima facie case grant of stay - stay granted partly. - E/89645/13 - - - Dated:- 4-3-2014 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri V M Doiphode, Adv. For the Respondent : Shri Ahibaran, Addl. Commr. (AR) PER : P R Chandrasekharan The appeal and stay application are directed against Order-in-Original NO. Belap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lopment Commissioner s office addressed to the Commissioner of Central Excise, where he has confirmed that as per the revised NFE calculations, the unit achieved negative NFE of ₹ 94.14 lakhs for the period 2004-05. The appellant came to know this position only after receipt of the impugned order. He further submits that when the matter was referred earlier by the jurisdictional Range Superintendent vide letter dated 1.7.2011, the Development Commissioner s office vide letter dated 18.7.2011 had replied to the department stating that the performance of the appellant s unit has been monitored on the basis of C.A. certified APRs submitted by the unit for the period from 2003-04 to 2004-05 and it was observed that the unit had achieved p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order on 28.8.2013 and, therefore, the principles of natural justice have been violated. Accordingly, he pleads for setting aside the impugned order and grant of stay. (iii) The learned Counsel also submits that the clearances to DTA were effected by the appellant in terms of the permission granted by the Development Commissioner at the relevant point of time and while granting this permission, the Development Commissioner would have certainly considered the achieving of positive NFE. Since the clearances have been effected in terms of the Development Commissioner s permission, it cannot be alleged that the appellant suppressed any facts or did not satisfy the condition of the notification. 3. The ld. Addl. Commissioner (AR) ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the appellant should have been put to notice with regard to non-achievement of NFE, the learned AR submits that the exemption Notification itself stipulates the condition of positive NFE. Inasmuch as the appellant s contention in this regard has been negated by the competent authority, there is no violation of principle of natural justice as alleged by the appellant. In these circumstances, he prays that the appellant be put to terms. 4. We have carefully considered the submissions made by both sides. 4.1 From the records it is seen that vide letter No. SEEPZ.SEZ/28/EOU(18)02-03/Vol.II dated 29.7.2010 the Development Commissioner had written to the jurisdictional Dy. Commissioner of Central Excise, Taloja Division, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 2008 and prior to that, NFE was required to be calculated on a year-to-year basis. In the present case, the demand pertains to the year 2003-04 and 2004-05. In the letter issued in July, 2010, the Development Commissioner has clearly pointed out that the appellant had failed to achieve positive NFE during the years 2003-04 and 2004-05. 4.2 As regards the reliance placed by the appellant on the decision of the Hon ble Bombay High Court dated 14.10.2009, the said order dealt with a petition before the Settlement Commission. In that case, the Settlement Commissioner had submitted a report dated 9.2.2009 which was not made available to the petitioner. It was in that context, it was held that non-submission of report to the Commissioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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