TMI Blog2019 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... - Mr. Ashok Jindal, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri. Surjeet Bhadu, Shri. Veer Singh, Advocates- for the appellant Shri. Vijay Gupta, AR- for the respondent ORDER Per Ashok Jindal: The appellant is in appeal against the impugned order wherein, the Customs duty as well as Central Excise duty has been demanded on account of procuring the inputs without payment of duty and has been used in export of goods without any permission from Development Commissioner to procure the said inputs. 2. The brief facts of the case are that the appellant is 100% EOU, engaged in the manufacture of Medicaments. The appellant was procuring duty free indigenous and imported raw material against CT-3 in terms of the Notification No. 22/2003-CE and 52/2003-CUS both dated 31.03.2003 read with provisions of chapter 6 of the Foreign Trade Policy 2009-2014. The appellant had executed B-17 bond for surety. The appellant for the manufacture and export of products on the basis of maximum utilization of plant and machinery had procured a LOP dated 22.11.2004 issued by the Assistant Commissioner, Special Economic Zone, Noida. The LOP was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment brought into the factory and the jurisdictional Central Excise authorities who caused physical verification. The said inputs were used by the appellant for manufacture of their final product and the final product were exported under bond. These facts are not in dispute. However, in the meantime, the department initiated proceedings for recovery of duty saved on inputs used for manufacture of 64 products (out of total 74 products) which were approved by the development commissioner vide letter dated 08.08.2013. The appellant applied for regularization of the gap period of the 64 items to the Policy Relaxation Committee and Policy Relaxation Committee vide its meeting dated 15.03.2016 directed the Development Commissioner to allow broad banding in respect of those items for which permission of drug controller were obtained prior to commencement of production from the date of approval of drug controller. In pursuance of the said principle approval, the Development Commissioner vide letter dated 07.09.2016 granted retrospective approval to 59 products out of 74 products. Further, the Development Commissioner sought certain clarification from the Policy Relaxation Committee and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt permission to appellant for harmonious functioning of EOU Scheme and duty demand in respect of imported machinery not sustainable. He also submits that the show cause notice and order are not maintainable on one more ground that the same has been issued in violation of the Board Circulars No. 21/95-CUS dated 10.03.1995 and Circular No. 122/95-CUS dated 28.11.1995, wherein, it provides that no show cause notice shall issued by the department to an EOU as the decision of the Development Commissioner is pending. In the present case, the Development Commissioner has forwarded case to the Board of Approval vide his letter dated 21.02.2014 for broad banding of 74 products, wherein a show cause notice has been issued on 21.07.2014 during the pendency of proceedings before the Development Commissioner, therefore, in terms of CBEC circular and the decision of this Tribunal in the case of Tegs Masrado Pvt. Limited vide Final Order No. A/60029/2018-EX(DB) dated 09.01.2018, the proceedings against the appellant are not sustainable. 4. He further submits that demand issued against the appellant is barred by limitation as a demand for the period of 19.11.2007 to 07.08.2013 has been con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for duty free procurement of inputs. 8. Heard the parties and considered the submissions. 9. On careful consideration of the submissions made by both the sides, we find that in this case the appellant was having the 100% EOU to manufacture of said products vide LOP dated 22.11.2004. All the products exported by the appellant have been allowed finally by Development Commissioner vide its order dated 21.03.2017. The similar issue came up for consideration of this Tribunal in the case of Global Wool Alliance P. Ltd. (Supra) wherein this Tribunal observed as under: 8. We have carefully considered the rival submissions. As rightly observed by Commissioner, it is not a case where the assessee did not have the permission to clear the goods into DTA. The assessee was first given the authorisation on 3-9- 1998 for clearance of wool noil and tops and then on 24-12- 1998 to clear worsted yarn/grey fabrics. The said authorisation continued to be issued right up to 18-4-2001 for the various products manufactured by the assessee and also specified the entitlement of assessee to clear specified quantity of goods. It is not a case where the assessee exceeded the limits of entitleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Development Commissioner vide their application dated 03.11.2008 and 02.05.2011, the same were pending disposal before the Development Commissioner and during pending the proceedings before the Development Commissioner, the impugned show cause notice has been issued to the appellant which in-violation to the CBEC circular no. 21/95- CUS dated 10.03.1995. As per the said circular, the demand of duty should be confirmed only after the definite conclusion arrived at by the Development Commissioner. Admittedly, the impugned order has been passed by the adjudicating authority before the conclusion arrived by the Development Commissioner, therefore, in the light of the decision of this Tribunal in the case of Tegs Masrado Pvt. Ltd. (Supra), wherein this Tribunal observed as under: 10. On going through the above records, we find that while remanding the matter in the earlier round of litigation it was held by this Tribunal that proceedings could be initiated against the appellant only after the recommendation of the Development Commissioner and the Development Commissioner has dropped the proceedings against the appellant. Moreover, as per the CBEC Circular No. 21/95- Cus d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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