TMI Blog2019 (7) TMI 1786X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 dated 31.03.2003. The appellant filed their reply to the show cause notice enclosing therewith relevant documents to the show cause notice. The hearing took place in the matter on 20.01.2017. However, the adjudicating authority failed to appreciate the submissions of the appellant and passed the order in original dated 14.03.2017 and confirmed the demand of Central Excise duty to the tune of ₹ 4,98,210/- alongwith interest under Section 11AB/11AA and penalty of ₹ 2,49,105/- under Rule 25 read with Section 11AC of the Act. Being aggrieved with the order appellant filed appeal before the Commissioner (Appeals) which came to be dismissed 3.1 Being aggrieved with the impugned order the appellant is before this Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to defect in material. Thus, the aforesaid documents alone demonstrate a total of USD 18043.14 has been discounted on genuine quality issues. 5. Learned Counsel further submits that the factum of discount has not at all been suppressed by the appellant. It is apparent from the Bank Realisation Certificate (BRC), the amount proportionate to the transit loss has been accepted as discount. Further, it is submitted that the benefit under Notification No. 52/2003-Cus, is not based on 100% realisation of export proceeds; instead, it is dependent upon achieving positive NFE, which is an admitted position in the instant case. He also submitted that the underlying adjudication is erroneous against 100% EOU, has been affected by serious contrav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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