TMI Blog2015 (5) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sub Rule of Rule 25 ibid has in no way prejudiced the appellants. Appellants contention of double jeopardy on the ground that they have already been penalised under the FTDR Act, 1992 is totally invalid as the ingredients of offences under the FTDR Act and the Customs Act, 1962/Central Excise Act, 1944 are different. It needs to be appreciated that this case does not involve clandestine removal of goods or any wilful mis-statement or suppression of facts and even the appellate body of the DGFT in the given circumstances had taken a lenient view with regard to imposition of penalty for the violation of the provisions of the Foreign Trade Development and Regulation Act. In these circumstances the penalties imposed deserve to be substantially attenuated. - Decided partly in favour of assessee. - Appeal No. C/642/2008-CU(DB) - F. Order No. 51491/2015 - Dated:- 5-5-2015 - Hon ble Mr. Justice G. Raghuram, President And Hon ble Mr. R.K. Singh, Member (Technical),JJ. For the Appellant : Shri J.M. Sharma, Advocate For the Respondent : Shri A.K. Agarwal, C.A. Shri Amresh Jain, D.R. ORDER Per R.K. Singh : Appeal has been filed against the Order-in-Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the said LOP by not utilising the goods procured duty free for producing and exporting flowers as required and not achieving positive NFE. The adjudicating authority specifically noted that there was no permission granted to the appellant to make domestic clearances and in spite of there being no such permission they cleared the goods in the Domestic Tariff Area (DTA). The adjudicating authority observed that they had exported roses valued at ₹ 98.02 lakhs only since inception and that they had cleared the said product mainly in the DTA. The adjudicating authority also specifically referred to Notification No. 52/2003-Cus. dated 31.3.2003 (as amended) and Notification No. 22/2003-CE dated 31.3.2003 (as amended) which inter alia required proportionate payment of duty foregone in case of short fall in achieving positive NFE. 3. The appellants have contended that: (i) all the duty free procurements by them were during the period prior to 2003 and therefore Notification No. 52/2003-Cus and Notification No. 22/2003-CE were not relevant and so the adjudicating authority was not right in resorting thereto. (ii) The condition of proportionate payment of duty foregone in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Rules, 2002 is not imposable as the adjudicating authority has not specified the sub-rule of Rule 25 under which the penalty has been imposed and that the Commissioner has not held the goods liable to confiscation which is a pre-condition for penalty under the said Rules. 4. The ld. DR on the other hand essentially contended that (i) the appellants did not fulfil the conditions of the exemption notifications under which the goods were procured duty free and therefore the duty foregone is clearly recoverable, (i) The goods so procured were also rendered liable to confiscation on account of violation of the conditions of exemption notifications and hence penalties imposed are clearly imposable. 5. We have considered the contentions of both sides. The appellants have stated that the imported/indigenous goods were procured during the period 1995-1996 to 2002-2003. The details of procurement of goods submitted by the appellants do indicate that the goods were procured only up to the year 2002-2003. This contention has not been disputed by the adjudicating authority. Therefore there cannot be any doubt/dispute that for the goods procured prior to 31.3.2003, the conditions of No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of export goods. thereafter, upon debonding the goods are treated as imported goods and subjected to duty as applicable to other import goods. That the original import was under an export obligation scheme makes no difference to duty liability. In this regard, it is to state that we agree with the contention of the appellants that during the relevant time when the goods were procured duty free there was no condition to achieve positive NFEE in Notifications Nos. 136/1994-CE and 126/94-Cus. nor was there any condition requiring only proportionate payment of duty in case of non-fulfilment of export obligation. Indeed the adjudicating authority s reference to Notification No. 52/2003-Cus. and Notification No. 22/2003-CE in the present case is totally out of context because these notifications were issued on 31.3.2003 while procurement of impugned goods duty free took place prior thereto and hence these notifications do not have any nexus with the impugned goods. However, it needs to be emphasised that the adjudicating authority has categorically recorded a clear finding that the appellants did not fulfil the conditions of the exemption Notification No. 136/94-CE regarding export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by which the export obligation was not fulfilled) and therefore in the present case, the fact that they had made some exports, is immaterial for the purpose of the appellants duty liability because in spite of those exports, they remained in clear violation of the conditions of exemption under the said notifications (No. 136/94-CE and Notification No. 126/94-Cus.) and as a consequence were rendered ineligible for the exemption there-under; the further consequence of which is that the entire duty foregone became recoverable. 10. The appellants strenuously argued that it is a case of debonding of EOU and that they have paid duty on the depreciated value of the goods at the time of debonding which automatically follows on cancellation of LOP and cited judgements to that effect like Mohd. Tariq Abbasi Vs. CCE, Meerut-I 2012 (283) ELT 287 (Tri.-Del.). That debonding follows as a consequence of cancellation of LOP is not an unacceptable proposition. But in the present case the issue is the appellants non-eligibility for the exemption notifications (under which duty free procurements were made) by virtue of non-fulfilment of the condition thereof. None of the judgements which they c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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