TMI Blog2012 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, there is no definite conclusion arrived at by the concerned authority namely the Development Commissioner. On the other hand, the Development Commissioner has vide its letter dated 22-12-1998 extended the period of validity for a further period upto 31-3-1999 and the importers have further requested for further extension. Therefore, in the present case, the duty demand is premature and we see no option but to set aside the impugned order - in favour of assessee. - C/1104/06 - - - Dated:- 12-6-2012 - Mr. M.V. Ravindran, Mr. B.S.V. Murthy, JJ. For Appellant : Shri P.M. Dave, Adv For respondent : Shri R. Nagar, A.R. Per : Mr. M.V. Ravindran; This appeal is directed against order in appeal No.455/2006/373 (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the duty worked out by the customs as being arbitrary and unreasonable without appealable order. Hon ble High Court directed the Revenue Authorities to consider the representation made and pass a reasoned order as early as possible after following the principles of natural justice. On such specific directions of Hon ble High Court of Gujarat, the adjudicating authority after granting a personal hearing to the appellant herein and considering the submissions made by them confirmed the demand by denying the benefit of Notification No.02/95-CE dated 4.1.95. Aggrieved by such an order, the appellant preferred an appeal before the first appellate authority who also agreed with the views of the adjudicating authority and upheld the order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be calculated for the block period for five years beginning from the date of commencement of production while in this case the appellant had commenced the commercial production only in April 1998 and therefore present action of the authorities in considering the period prior to the date of commencement of commercial production while calculating the NFEP is wholly illegal and arbitrary. It is his submission that even the calculation of NFEP is erroneous as export-import policy under para 9.29 categorically talks about calculation of NFEP for a period of five years cumulatively and this can be done so only on completion five years. Hence the show cause notice issued for the demand of the duty in this case, before the expiry of five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of para 9.29 of export-import policy 1997-2002 needs to be appreciated which is as under: 9.29 Net Foreign Exchange Earnings as a Percentage of exports (NFEP). Net Foreign Exchange Earning as a percentage of export (NFEP) shall be calculated annually and cumulatively for a period of five years from the commencement of commercial production according to the following formula: NFEP = A-B where B NFEP is Net Foreign Exchange Earning as a percentage of exports, A is the FOB value of exports by the EOU/EPZ/EHTP unit; and B is the sum total of the CIF value of all imported inputs, the CIF value of all imported capital goods, and the value of all payments made in foreign exchange by way of commission, royalty, fees, dividen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The matter has been examined by the Board in the context of an Audit objection and I am directed to say that the Board has taken a view that liability of customs duties on goods imported by 100% EOUs arises either at the stage of the unit being de-bonded or if any of the conditions of the exemption Notification No. 13/81, dated 9-2-1981 has been violated or remains unfulfilled. In this regard, it is seen that one of the conditions of the exemption notification is that the importer exports out of India 100% or such other percentage, as may be fixed by the Board of articles manufactured wholly or partly from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board. It is thus clear tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her period upto 31-3-1999 and the importers have further requested for further extension. Therefore, in the present case, the duty demand is premature and we see no option but to set aside the same. The penalty imposed on the appellants is also set aside. The order of confiscation is also set aside. Needles to say, it will be open to the Adjudicating authority to take appropriate action for recovery of duties in the event of the recommendations of the Development Commissioner in this regard, in accordance with law. The impugned order is set aside and the appeals are allowed. The Misc. application is dismissed as not pressed. 11. The above said ratio has been followed by the various decisions of this bench as has been correctly pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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