TMI Blog2018 (1) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal dated 19.09.2001 and also against the spirit of the CBEC Circular No. 21/95-Cus dated 10.03.1995. Appeal allowed - decided in favor of appellant. - Appeal No. E/60520/2016-DB - Final Order No. 60029 / 2018 - Dated:- 9-1-2018 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Kamaljeet Singh, Advocate for the Appellant Shri Harvinder Singh, A.R. for the Respondent ORDER Per : Ashok Jindal The appellant is in appeal against the impugned order which is as follows:- (i) I confirm the demand of Customs Duty amounting to ₹ 2,76,20,8131/- (Rupees Two crore seventy six Iakhs twenty thousand eight hundred and thirteen only) under Section 28 of the customs Act, 1962, along with interest at the appropriate rate with effect from 28.09.1996 under erstwhile under Section 28AB of the Customs Act 1962, read with Section 28AA of the Customs Act, 1962. (ii) I order for confiscation of imported capital goods and raw material valued at ₹ 284.94Lacs under Section 111(o) of the Customs Act, 1962. However, I afford the Noticee an option to redeem the same on payment of fine of ₹ 70,00,000/- (Rupees Seventy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is a second round of litigation. In the first round of litigation, the order was set-aside and thereafter again the impugned order has been passed. 3. The brief facts of the case are that the appellant is a 100% EOU engaged in the manufacture of canned mushrooms. They were registered as such, in terms of Letter of Permission (in short LoP) dated 29.03.1990, by the Ministry of Industry, Department of Industrial Development. The appellant imported capital goods and raw materials in terms of Notification No. 13/81-Cus dated 09.02.1981 and also procured certain capital goods and raw materials indigenously in terms of Notification No. 57/94-CE dated 01.03.1994, free of duty. The appellant manufactured and exported canned mushrooms during the year 1993-94 of ₹ 59.79 Lakhs, in 1994-95 of ₹ 48.32 Lakhs, 1995-96 of ₹ 118.67 Lakhs and in 1996-97 of ₹ 51.77 Lakhs and closed their production from 25.05.1996. The department issued the show cause notice dated 21.09.1999 proposing confiscation of the imported capital goods, raw materials, indigenous capital goods and raw materials besides the duty demand on the ground that the appellant have not fulfilled the expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of mistake was filed by the Revenue but the same was dismissed by the Tribunal vide order dated 08.08.2003. Further, another show cause notice issued by the Development Commissioner on 12.09.2003 also stands disposed of as the ld. Development Commissioner had no powers to Review the order dated 10.12.2002. As per the CBEC Circular No. 21/95-Cus dated 10.03.1995, no action can be initiated against the appellant as the same is required to be taken after definite conclusion arrived at by the Development Commissioner for non-fulfilment of export obligations. In this case, as the Development Commissioner has discharged the show cause notice issued by them, therefore the impugned order is not sustainable in the eyes of law. 6. On the other hand ld. AR opposed the contention of the ld. Counsel. He submits that it is fact on record that the Development Commissioner has taken wrong figures to arrive at a conclusion that show cause notice is not sustainable against the appellant therefore, the adjudicating authority has examined the issue and confirmed the demand against the appellant and the same is required to be upheld. 7. Heard the parties and considered the submissions. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U ceases production prematurely or fails to commence production or export within the stipulated period. In case the Development Commissioner initiates action against the unit for non-fulfilment of export obligation etc. simultaneously the customs authorities should issue show cause notice for failure to comply which conditions of Notification 13/81-Cus., dated 9-2-1981. The demand of duty should be confirmed only after a definite conclusion has been arrived at by the Development Commissioner. The said order has not been challenged by any side and the same has attained finality and as per the said order, it was held that proceedings could only be initiated after the recommendations of Development Commissioner. Therefore, to proceed against the appellant the recommendation of the Development Commissioner is required in terms of CBEC Circular 21/95-Cus dated 10.03.1995. As per the said Circular, extracted hereinabove, the demand of duty should be confirmed only after the definite conclusion arrived at by the Development Commissioner. The Development Commissioner, after issuance of the show cause notice arrived at the conclusion which is reproduced hereunder:- 10. I have gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Development Commissioner. Rather the copy of order dated 10th December, 2002 passed after the passing of the impugned final order by the Tribunal and produced by the counsel, shows that on account of breach in the export obligations for having not maintained the minimum value addition/NFEP of 33.60% the respondents/appellants were issued show cause notice on the review of the performance made by them. After getting their reply, the Development Commissioner had dropped the proceedings against them through this order by holding that there was no short fall in NFEP and there was no sectoral norms and that the unit had been foreign exchange earner during. In the face of this order, we doubt if the Department will be legally competent to reinitiate the duty recovery proceedings against the respondents/ appellants. 5. In view of the above discussion, we do not find any mistake of fact or law appearing on the face of the impugned final order of the Tribunal so as to call for any rectification. Therefore, the ROM application filed by the Revenue is ordered to be dismissed being without any merit. 9. Thereafter, the another show cause notice was issued to the appellant by the Dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of review of an order-in-original under the FTDR Act other than Appeal and Revision under Section 15 16 of FTDR respectively. The proposed action in the show cause notice is beyond the ambit of Section 17(4) of FTDR Act as well as the said FTDR Act does not confer upon me any power for review of an order passed by then Development Commissioner. Accordingly I pass the following order. Order I cannot review the Order-in-Original passed on 10.12.2002 by the then Development Commissioner in absence of power of review conferred upon me under the FTDR Act and under Section 17(4) of the FTDR Act. 10. On going through the above records, we find that while remanding the matter in the earlier round of litigation it was held by this Tribunal that proceedings could be initiated against the appellant only after the recommendation of the Development Commissioner and the Development Commissioner has dropped the proceedings against the appellant. Moreover, as per the CBEC Circular No. 21/95-Cus dated 10.03.1995, the demand of duty is required to be confirmed only after definite conclusion arrived at by the Development Commissioner and the CBEC Circular is binding on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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