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2016 (11) TMI 676 - CESTAT NEW DELHIDemand - EOU - export obligation - N/N. 53/1997-Cus. dated 3.6.1997 - whether the charge against the appellant that non-fulfilment of the conditions under Notification No. 53/1997 and the conditions of the bond executed at the time of setting up the EOU is justified? - Held that: - The impugned order has not given the proportionate benefit of the exports made by the appellant though it is a fact that their net foreign exchange earnings are not positive. However, considering the contents of Circular No. 29/2003-Cus dated 3.4.2003 issued by CBEC [its clause 7 (vii)] and considering Condition 3 (d) of notification No, 52/2003-Cus dated 31.3.2003 (though this notification was issued rescinding the N/N. 53/1997-Cus.) and considering the CESTAT Bangalore decision in case of CC Vs. Natural Stone Exports Ltd (2006 (1) TMI 338 - CESTAT, BANGALORE), we are of the considered view that the appellant is entitled to the proportionate benefit of exports made against which they claim to have realized the foreign exchange. The impugned order did not give the assessee appellant the benefit of exports saying that they did not produce any documentary evidence showing realization of export proceeds. The duty liability against the appellant is only to the extent of the gap between the foreign exchange realised on the exports made and the foreign exchange outgo for the imports made by the appellants as per the clarifications in the Circular No. 29/2003-Cus. and the contents of the N/N. 52/2003-Cus. referred above. The liability of duty against the appellant would be limited to the gap between the foreign exchange outgo for the imports and the foreign exchange earned on account of exports made. To hold the assessee liable for the duty foregone in case of all the imports is illogical, which is clear from the contents of the N/N. 52/2003-Cus. and the case laws cited above ; and it naturally flows that the appellant is entitled to the proportionate benefit of the exports made and foreign exchange realised though for which they had not produced the documentary evidence before the adjudicating authority. Impugned order set aside - matter remanded back to the Commissioner, Central Excise, Jaipur-I who shall decide it afresh in the light of the findings made above within four months of receipt of this order after giving opportunity of personal hearing and that of production of necessary evidence/documents.
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