TMI Blog2016 (11) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... 52/2003-Cus dated 31.3.2003 (though this notification was issued rescinding the N/N. 53/1997-Cus.) and considering the CESTAT Bangalore decision in case of CC Vs. Natural Stone Exports Ltd (2006 (1) TMI 338 - CESTAT, BANGALORE), we are of the considered view that the appellant is entitled to the proportionate benefit of exports made against which they claim to have realized the foreign exchange. The impugned order did not give the assessee appellant the benefit of exports saying that they did not produce any documentary evidence showing realization of export proceeds. The duty liability against the appellant is only to the extent of the gap between the foreign exchange realised on the exports made and the foreign exchange outgo for the impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h interest and imposition of penalty as the appellant M/s Moonlight Exim Pvt. Ltd. failed to fulfil export obligation and the conditions of benefit Notification No. 53/1997-Cus. dated 3.6.1997. 3. The appellant, an EOU, was granted Letter of Permission (LOP) on 20.13.2000 and was required to export goods of US $ 407.80 lakhs within five years as per LOP. The appellant failed to achieve its export obligation and did not provide any proof of realization of foreign exchange against the exports made. 4. The appellant based on the strength of written submissions inter alia submits as follows: (i) The appellant imported mixed metal scrap which was segregated and processed in the EOU and a quantity of 2200.077 MT of various items includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et Foreign Exchange Earnings bears to the positive Net Foreign Exchange Earnings (NFEE) to be achieved along with interest. The Notification No. 52/2003 (supra), in this regard inter alia mentions as follows. The goods imported by respective export oriented undertaking are exempted from whole of duty of customs subject to the following conditions, namely:- (1)............. (2)............... (3) The unit executes a bond in such form and for such sum and with such authority, as may be specified by the said officer, binding himself - (a)............. (b).............. (c).............. (d) To pay on demand- (1) an amount equal to duty leviable on the goods and interest at a rate as specified in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocurement and import by EOUs etc. 5.2 The appellant has referred to following case laws: (i) Natural Stone Exports Ltd. Vs. CC 2006 (198) ELT 440 (Tri.-Bang.) saying that liability to duty is only in proportionate to non-achieved portion of NEF. (ii) CC Vs. Natural Stone Exports Ltd. 2013 (288) ELT 341 (Kar.). (iii) Mavi Industries Ltd. Vs. CCE - 2013 (289) ELT 72 (Tri.-Mumbai). (iv) Nikhil Industries Pvt. Ltd. Vs. CC 2005 (180) ELT 321 (Tri.-Del.) (v) Pudumjee Plant Laboratories Ltd. Vs. CCE 2013 (295) ELT 593 (Tri.-Mumbai). (vi) Paras Fab International Vs. CCE 2010 (256) ELT 556 (Tri.-LB). 6. Revenue has been represented by ld AR Dr. S.K. Sheron, who reiterates the findings of the impugned order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n export of the goods countable towards fulfillment of export obligation amounting to ₹ 298.98 lakhs. (para 24 of the impugned order). (ii) But the appellant did not produce any documentary evidence in respect of receipt/realization of foreign exchange/export proceeds in respect of physical exports, the goods supplied to EOUs and sold to DTA in terms of para 9.10 (b) and 6.5 of the EXIM Policy applicable (para 24 of the impugned order). (iii) Assessee claimed clearance of goods valued at ₹ 217.89 lakhs to DTA against the payment of foreign exchange in terms of para 9.10(b) and 6.5 of EXIM policy and RBI Circular No. 4 dated 31.3.2000 which was countable towards fulfillment of export obligation. In this case the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the notification No. 53/1997-Cus.) and considering the CESTAT Bangalore decision in case of CC Vs. Natural Stone Exports Ltd (supra) and CESTAT Delhi decision in the case of Nikhil Industries Pvt. Ltd. (supra) and CESTAT Mumbai decision in the case of Mavi Industries Ltd. (supra), we are of the considered view that the appellant is entitled to the proportionate benefit of exports made against which they claim to have realized the foreign exchange. The impugned order did not give the assessee appellant the benefit of exports saying that they did not produce any documentary evidence showing realization of export proceeds. The duty liability against the appellant is only to the extent of the gap between the foreign exchange realised on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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