9911796707
TMI Blog2006 (9) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned JDR, for the Revenue. 4.The learned Advocate, urged the following points :- (i) The appellants are 100% EOU in Kotlapulur Village, Sullurpet. They manufacture and export Hydrogen Peroxide and Sodium Perborate. The events leading to the present appeal in a chronological fashion was outlined as given below : Date Events 5-3-87, 3-12-1993 and 26-5-95 Permission granted by Government of India for setting up of unit in Kotapolur Village 13-11-1995 Acceptance of bond by Assistant Commissioner, Nellore, regarding 100% EOU of Asian Peroxide Ltd. (APL) 21-2-1997 APL makes a request to the Government for permission to import one number of DG set. 17-4-1997 Approval given by the Government for the above import subject to inter alia the condition that the DG set will be used in the bonded premises only. 19-6-1997 Development Commissioner in Visakhapatnam EPZ gives permission to import DG set subject inter alia to the condition that the goods will be imported into the EOU premises and on observance of the normal procedure including execution of a transit bond. 28-7-97 APL imports DG set under B/E No. 39661/28-7-97, and transports the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said village as a warehousing station. 11-12-2002 and 22-2-2003 10-3-2003 Commissioners of Customs & Central Excise vide Order-in-Original No. CE-22/2003, dated 10-3-2003 confirmed the proposals in the Show Cause Notice. 6-10-2004 On appeal, the CESTAT remanded the matter for de novo adjudication. PRESENT PROCEEDINGS 9-2-2005 The Joint Commissioner informs the appellants that there was no permission from the Development Commissioner which was required for declaring the village; that the appellants are advised to obtain necessary permission from the Development Commissioner. 24-2-2005 & 1-3-2005 The appellants requested the Development Commissioner seeking permission for inclusion of additional location in Nandendla Kandriga Village as an EOU. 7-3-2005 Development Commissioner granted permission to include the additional location (covered by Survey No. 4, 5, 6, 8 & 10 of Nandendla Kandriga Village) to the existing EOU of the Appellants;- that the letter of permission may be deemed to be amended to the above extent. 23-2-2005 The appellants filed written submissions before the Commissioner of Central Excise & Customs, Guntur 6-1-2006 Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions :- (a) CCE, Hyderabad v. Sanghi Spinners (I) Ltd. - Final Order No. 1090/2006, dated 22-6-2006 (b) Ginni International Ltd. v. CCE, Jaipur - 2002 (139) E.L.T. 172 (vi) The appellants found that the existing premises situated in Kotapolur Village, was short of space to accommodate the DG set imported. Hence, even before the expiry of the three months from 19-8-1997 when the Transit bond was executed, they applied to the Commissioner for declaring the Nandendla Kandriga Village as a Warehousing station under Section 9 of the Customs Act in their letter dated 5-11-1997. There was much correspondence between the department and the appellant. The proposed power plant at Nandendla Kandriga Village is only 300 meters away from the present EOU premises. The Development Commissioner recommended the request of the appellant on 26-2-2001. Despite this, the Joint Commissioner, on 9-2-2005, issued a letter stating that an approval was to be obtained from the Ministry of Commerce/Development Commissioner and since the same was not there, the application was rejected. When the appellants were told that the only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants have repeatedly requested the Jurisdictional Commissioner to declare Nadendla Kandriga Village as a Warehousing station and no rejection has taken place. It is the submission of the appellants that they cannot be held responsible for the delay by the Commissioner in declaring the Nandendla Kandriga Village as a Warehousing station. (a) Priyanka Overseas Pvt. Ltd. v. Union of India - 1991 (51) E.L.T. 185 (S.C.) (b) Kuil Fireworks Industries v. CCE - 1997 (95) E.L.T. 3 (S.C.) (c) Sesu International v. CC - 2003 (159) E.L.T. 161 (T) = 2002 (53) RLT 352 (Tri.) (x) The Commissioner has held that the letter dated 7-3-2005 of the Development Commissioner has been issued under the present Foreign Trade Policy and application having been made by the appellants on 5-11-1997 cannot be made applicable. It was submitted that the earlier policy also empowered the Development Commissioner to add any additional premises to the existing EOU. He continues to hold that power under the present policy also. In terms of para 1.4 of the present policy, licences, permissions and certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials for 100% EOUs located outside the port city and therefore, in urgent need of equipment. The idea is to expedite clearances. The Board, in its Circular letter dated 28-11-1988, delegated its powers to Principal Collectors in respect of declaring a place as warehousing station under Section 9 of the Customs Act. In that letter, they have stated that only those places should be notified as Warehousing Stations where adequate facilities are available for appointing Public Bonded Warehouses. However, in the case of 100% EOUs, this condition can be relaxed and the declaration shall only be for the purpose of warehousing of goods imported by 100% EOUs. They have further stated that in respect of goods imported by 100% EOUs, a liberal approach could be adopted in granting extension of warehousing period. On 1-8-1994, the Ministry, vide Notification No. 33/94 (NT)-Cus., dated 1-7-1994, empowered the Collectors of Customs to declare a place as warehousing station in respect of 100% EOUs. The idea is that the delegation would decentralize decision making and thereby help reducing the delays in setting up 100% EOUs which in turn will facilitate the export effort. In the year 1999, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s order : "9.With regard to the Development Commissioner's letter No. 8/EOU-24V/SEZ/2005-07, dated 7-3-2005, wherein permission has been granted to include the additional location to the existing EOU of APL, I find that said permission has been granted under para 6.34(8) of the Foreign Trade Policy, 2004-2009. Therefore, the permission granted by the Development Commissioner cannot fulfil the requirements of the application dated 5-11-1997 under the respective EXIM Policy. Accordingly, APL are required to file a fresh application for extending the warehouse location in terms of the said permission granted by the Development Commissioner, which would be applicable from the date of approval of warehouse, if any." 6.3The Commissioner, has not given any acceptable reason for rejecting the request of the appellant except to say that the Development Commissioner's permission is granted under the Foreign Trade Policy 2004-2009 and it cannot fulfil the requirements of the application dated 5-11-1997 under the respective EXIM Policy. In our view, the Commissioner has adopted a highly technical approach to the issue in question. This approach is quite contrary to all the clarifications and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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