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2018 (9) TMI 97 - KERALA HIGH COURTRecovery of Short Levy - Is the finding of the CESTAT that the finding of the Commissioner (Appeals) is not correct in terms of the Board's circular as the Development Commissioner has satisfied himself with regard to the export obligation, legally sustainable in the facts and circumstances of the case especially when the customs department confirmed the demand only after getting the written approval from the Development Commissioner on 06.03.2002? Held that:- The unit had achieved export of ₹ 375.25 lakhs by 31.03.2000, but it did not achieve the stipulated NFEP by that date and therefore was not able to acquire the DTA sale entitlement. Upon which, the short levy was sought to be recovered from the respondent. The Commissioner of Appeals had also specifically spoken of the Development Commissioner's order dated 08.03.2002 dropping proceedings, which proceedings is stated to be confined to the review of export obligation of the applicant up to 31.03.2004. Despite the said finding, the Tribunal has not cared to examine the order of the Development Commissioner and has merely relied on the fact that there was dropping of the proceedings without verifying as to which proceeding was dropped by the Development Commissioner. The Tribunal had relied on Notification No.13/1981 to find that, without the Development Commissioner's sanction, there could be no levy of short duty collected by the Customs authorities. We do not see applicability of Notification at 31/1981 to Notification No.2/1995 and in any event, the Deputy Commissioner, who passed the original order, has by way of abundant caution ensured that the Development Commissioner's permission was obtained, as is evident from Annexure H - the order of the Tribunal is liable to be interfered with. Appeal allowed - decided in favor of Revenue.
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