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TMI Blog2013 (9) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... king to abide by the provisions of notification and also the commitment of export obligation. The appellant received licence for private bonded warehouse and the same was renewed upto 27.11.2005. The appellants could not utilize or use the capital goods so imported and the said goods were re-warehoused in the factory premises, but were not commissioned. The appellants were directed by the lower authorities to produce extension of the validity of a Letter of Permission from the Development Commissioner in order to install the said machinery. The request of the appellant to the Development Commissioner to extend the validity was not acceded to and the same was denied and was communicated to the Assistant Commissioner of Central Excise. Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the said capital goods were imported by them by availing benefit of Notification No.53/97. It is his submission that the said notification is a self-composing notification which provides for payment of duty in the case of non-fulfillment of export obligation and confiscation is not warranted, so also, the penalties. He would take us through the judgment of the Tribunal in the case of Noel Agritech Ltd 2011 (273) ELT 306 (T) and in the case of Nava Bharat Enterprises Ltd 2010 (256) ELT 602 (Tri-Bang). 5. Ld. D.R. reiterates the findings of the adjudicating authority. 6. On careful consideration of the submissions made by both sides and perusal of the records, we find that the appellant is not disputing the fact as to they are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner rejected this claim of the appellant as not substantiated. We find that it is reasonable to conclude that the EOU had wound up its business for want of business and funds. In this connection we find that the appellants have rightly relied on the decision of this Tribunal in Fal Industries Ltd. (supra) wherein the Tribunal has observed as follows: B. Confiscation of the goods & imposition of penalty. We observe that in this case the appellants have come clean before the authorities that it was beyond their control to fulfill the export obligations because of various reasons and they could export only a negligible quantity of 1%. Further, there is no allegation in the show cause that the appellants-importer willfully sough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the appellant therein had failed to fulfill the export obligation, owing to collapse of Korean Economy, the Tribunal ordered as follows: In a like situation, the Tribunal, in the citations referred to by the Counsel, has held that confiscation cannot be ordered in a circumstance when the export obligation became an impossibility. Further it has been held that when the Bank Guarantee has been realised before the issue of Show Cause Notice, then in such a circumstance, the redemption fine, penalty and interest is not imposable. We have perused these judgments and find that the appellant's prayer for setting aside the redemption fine, penalty and interest, in terms of these judgments, is justified. The ratio of the judgments clearly applie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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