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2019 (3) TMI 717 - AT - Customs10% EOU - Jurisdiction - whether the adjudicating authority has jurisdiction to examine as to whether appellant has fulfilled export obligation by achieving minimum positive NFE or not under Notification No. 53/97-Cus and 01/95-CE or otherwise? - Held that:- On perusal of N/N. 53/97-Cus. dated 03-Jun-1997, in its entirety, we find that the Central Government grants exemption from customs duty to goods imported into India for the purpose of manufacture of articles for export out of India, or for being used in connection with the production, packing or job work for export of goods or services out of India by 100% an EOU, as notified by the Board under Ministry of Industry, Department of Industrial Policy and promotion, subject to the conditions specified therein. It can be seen from the reproduced final Exit Order, the Development Commissioner has specifically held that appellant has achieved positive NFEP and fulfilled its export obligations as per the prescribed norms. This finding has not been challenged and attained finality. Though the Customs Authorities do not have jurisdiction to decide whether an assessee has fulfilled the export obligation, the Development Commissioner considered the provisions of the policy as applicable during the relevant period as it arrived at a definitive conclusion that the appellant has achieved positive NFEP and fulfilled its export obligations - thus it cannot be held that appellant has violated any of the conditions of the notifications. In any case, the re-computation of the NFEP by the Adjudication Authority is without any jurisdiction, especially when the Development Commissioner has found that minimum NFEP and minimum export obligations met. Even otherwise, minimum NFEP calculated by the Adjudicating Authority after the exports at Gopalapuram Mandal have exculded. We find that the Development Commissioner in final order has considered the proceeds from both the units, the adjudicating authority could not have re-computed the same after excluding the proceeds from one of the unit, this is especially so when development commissioner expressly considered its earlier order dated 03.05.2002 while holding that appellant has achieved net positive NFEP. In the present case, the appellant vide a specific application dated 15.04.2003 has sought exit from EOU scheme stating that it had achieved positive NFEP and minimum export performance as stipulated under the EXIM policy as on date. The Development Commissioner has examined the same and found that the appellant had achieved net positive NFEP and fulfilled the export obligations under the EXIM policy read with the handbook of procedures. Thus the findings of the Development Commissioner that appellant has achieved minimum NFEP and minimum export obligation, is in exercise of his powers under the EXIM Policy and as to be accepted by the authorities. Limitation - Held that:- There could not have been any suppression or mis-statement of facts when it is held that there was no evidence of suppression or mis-statement in the orders dated 12.10.1999 - The Department was in appeal challenging the above order, before the Tribunal. The Tribunal finally upheld the order dated 12.10.1999 dismissed the appeal on 19.01.2004, in such conditions neither the show cause notice nor the Order-in-Original in question shown any different circumstances that demonstrate that the appellant had suppressed any information with a view to evade taxes - The allegation of suppressions with intention to evade duty cannot be upheld in the given facts and circumstances of this case. Appeal allowed - decided in favor of appellant.
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