TMI Blog2014 (4) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 2-6-1981 on the strength of essentiality certificate issued by the sponsoring authority and warehoused for manufacture in bond; that at the time of issuance of show cause notice in 1988, the goods were lying in the warehouse which were de-bonded only during the year 2002 for which demand could not have been raised unless removed from the warehouse. Without challenging the order passed by a higher appellate authority, the adjudicating authority has passed the impugned order wherein he has neglected the findings of the CESTAT and rejected the refund claim filed by the Appellants on negligible grounds. Once the items are permitted to be imported and warehoused in terms of permission of the Development Commissioner, the Customs Department, later, could not question the eligibility of Notification No. 52/2003-Cus., dated 31-3-2003. Refund to be allowed subject to production of Board Resolution in favor of signatory of application. - Decided in favor of assessee. - Order-in-Appeal No. 268/2014-CE - - - Dated:- 30-4-2014 - Shri Kamal Jyoti, Commissioner (Appeals-I) Shri R. Dakshina Murthy, Advocate, for the Appellant. ORDER This is an appeal filed by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing recovery of ₹ 17,86,493/- towards duty of certain imported goods. 3. The adjudicating authority had taken up the remanded case and the second show cause notice together for decision and vide Order-In-Original Nos. 51-52/2000 dated 21-9-2000, has held that the Appellants were not entitled for the exemption and ordered recovery of the entire duty of ₹ 1,17,26,769/- (Rs. 99,40,276/- + ₹ 17,86,493) along with interest @ 20%. Again, aggrieved by these orders, the Appellants filed another appeal (No. 163/2000-Cus.) before the Commissioner of Customs (Appeal) who vide his OIA No. 62/2003-Cus., dated 5-2-2003, had rejected the appeal and confirmed the demand of the adjudicating authority. Prior to this, during February 2002, the Appellants, duly obtaining in- principle permission from the Development Commissioner of Cochin Export Processing Zone (CEPZ), applied to the Customs authority for de-bonding their unit and the final permission for de-bonding was given by the CEPZ on 28-6-2002. They also, sought for inter-unit transfer under the EXIM Policy. Pending disposal of the appeal before the Commissioner of Customs (Appeal), the Customs authorities have demanded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime limit for filing the reply; that apart from the notice and impugned order stated to be sent to the Appellants (which were returned by the postal authorities), the Appellants have received all other communications sent to them by the Department. By relying the decision in the case of Payal Ashok Kumar v. Captain Ashok Kumar Jindal reported in 1992 (60) E.L.T. 19 (S.C.) and various other judicious decisions of the higher appellate authorities, the Appellants contended that the impugned order passed by the adjudicating authority, without complying with the mandate of Section 153 with reference to serving of notice/order is liable to be set aside. They also submitted that the Tribunal passed the final order No. 1504/2010 dated 23-6-2010 in their favour with consequential relief which is being denied to them by the adjudicating authority in haste, without contesting the decision of the Hon ble CESTAT and without giving the appellant an opportunity for presenting their case. By relying in the ratio decisions in the case of (i) CCE v. Eskay Engineers reported in 1996 (83) E.L.T. 148 (T), (ii) UOI v. Kamlakshi Finance Corporation reported in 1991 (55) E.L.T. 433 (S.C.), (iii) Madhumila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact regarding de-bonding of goods by the Appellants. He also submitted compilation of case laws. DISCUSSIONS FINDINGS : 9. I have carefully gone through the records of the case including the submissions made by the Appellants in the appeal as well as during the course of personal hearing and the documents produced. I find that in the instant case, the goods in question have been de-bonded by the Appellants and made inter-unit transfer to another 100% EOU under the EXIM policy, by following the procedures and Rules and by paying the duty along with interest subject to the condition of claiming refund in the event of their succeeding the litigation. I also find that the Hon ble CESTAT in its final order No. 1504/2010 dated 23-6-2010 has observed that, there is no finding by the DGFT evidencing non-fulfilment of export obligation by the Appellants and the fact that the duty was assessed at the time of import in terms of Notification No. 13/81-Cus., dated 9-2-1981 and 123/81-C.E. dated 2-6-1981 on the strength of essentiality certificate issued by the sponsoring authority and warehoused for manufacture in bond; that at the time of issuance of show cause notice in 1988, the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with and despite of which the adjudicating authority had held that in the absence of original TR-6 Challans, refund cannot be sanctioned which is a deviation from his earlier stand and moreover, the fact regarding payment of duty and interest could have been ascertained by him from the Customs authorities. Now whether Shri B.M. Tambakkad is not an authorized signatory of the Appellant Company for signing the affidavit or refund claim, I find from the copy of minutes of the meeting held on 24th January 2011 that a resolution has been passed by the Board of Directors, where by Shri T.M. Tambakkad has been authorized to make application on behalf of the company to claim refund, execution of affidavit, declarations and for all necessary acts and deeds in this connection. But on seeking clarification whether these facts were presented to Department before passing of the impugned order, the jurisdictional Assistant Commissioner vide letter C.No. IV/18/84/109/2011(R) dated 21-3-2014 has clarified that copies of the Boards Resolution dated 7-1-2006 and 24-1-2011 were not submitted by the Appellant before passing order. 11. I further find that while vacating the demand of duty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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