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M/s. Tegs Masrado Pvt. Limited Versus Commissioner of Central Excise & ST, Chandigarh

2018 (1) TMI 487 - CESTAT CHANDIGARH

100% EOU - Non-fulfillment of export obligation - N/N. 13/81 dated 09.02.1981 - N/N. 57/94-CE dated 01.03.1994 - CBEC Circular 21/95-Cus dated 10.03.1995 - Held 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 N .....

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ing authority in the impugned order are contrary to the order of this 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 : As .....

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on 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 Iakhs only) within a period of three months from the date of receipt of this order. In case they choose to exercise this option, in addition to the amount of fine mentioned above, the Noticee shall also pay the amount of duty of ₹ 2,76,20,813/- leviable o .....

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on the finished stock of canned mushroom under erstwhile Rule 9(2) of the Central Excise Rules, 1944 read with Rule 8 of the Central Excise Rules, 2002 and Section 11A of the Central Excise Act, 1944, along with interest at the appropriate rate we.f.28.9.96 under erstwhile Section 11AB of the Central Excise Act, 1944 read with Section 1 1AA of the Central Excise Act, 1944. (iv) I order for confiscation of indigenously procured capital goods and raw materials valued at ₹ 19.50 Lakhs under .....

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he confiscated goods along with penal interest mentioned above. (v) I impose penalty amounting to ₹ 2,76,20,813/- (Rupees Two crore seventy six lakhs twenty thousand eight hundred and thirteen only) under Section 112 of the Customs Act, 1962. (vi) I impose penalty amounting to ₹ 4,75,000/- (Rupees four lakh seventy five thousand only) under Section 1 1AC of the Central Excise Act 1944 read with erstwhile Rule 173Q of the Central Excise Rules, 1944 and Rule 25 of the Central Excise Ru .....

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ry, 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 La .....

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.02.1981 or of 57/94-CE dated 01.03.1994. However, after due process of law, the ld. Commissioner has confirmed the demands and imposed penalties as enumerated in Para 1 hereinabove. 4. The matter was carried before this Tribunal and this Tribunal vide order dated 19.09.2009 set-aside the said adjudication order. Thereafter, the show cause notice dated 25.6.2002 was issued to the appellant by Development Commissioner, Ministry of Commerce and Industries, Noida. The said show cause notice was adj .....

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and he held that he cannot review the order-in-original dated 10.12.2002 passed by the then Development Commissioner. Thereafter the impugned order has been passed against the appellant. Aggrieved the said order, the appellant is before us. 5. Shri Kamaljeet Singh, ld. Advocate for the appellant submits that the show cause notice in question dated 21.09.1999 was held by this Tribunal as pre-mature and it was held that proceeding could be initiated only after the recommendations of the Developmen .....

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y the Development Commissioner, the Revenue can t proceed against the appellant in terms of CBEC Circular No. 21/95-Cus dated 10.03.1995. He further submitted that although the application for rectification 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 dat .....

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nsel. 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 find that this is a second round of litigation. In the earlier round of litigation, this Tribunal passed t .....

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ice of the Board where 100% EOU s had imported capital goods, raw materials and other permissible items under Notification No. 13/81-Cus., dated 9-2-1981 but have failed to export any goods or have closed down after exporting a few consignments. A question has been raised as to the stage at which the customs authorities should proceed to recover duties on imported goods and other goods lying in the factory premises of the 100% EOU. 2. The matter has been examined by the Board in the context of a .....

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Board, or articles manufactured wholly or partly from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board. It is, thus, clear that if the competent authority namely the Board of Approval or the Development Commissioner concerned determines that the unit has failed to export the fixed percentage of articles for the specified period, then in such case it may be held that the conditions of the exemption notification has been violated. As t .....

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ties 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 a .....

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cause notice and also submissions made during the P.H. on 15.11.2002. It is seen that total import of capital goods, raw material etc. has been to the extent of ₹ 219.88 Lakhs whereas the exports as admitted by the local Central Excise authorities in the show cause notice, order-in-original as well as Appellant order passed by CEGAT to the extent of ₹ 248.55 lakhs. As such, NFEP achieved comes to 21% as against 20% as stipulated in Appx.-I of Exim Policy. Thus, there is no shortfall .....

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the various judgments cited by the unit in their reply and during the hearing. The charges in show cause notice are, therefore, dropped against the unit. 8. We further find that Revenue filed application for rectification of mistake in the order of this Tribunal dated 19.09.2001 and the said application was also dismissed by this Tribunal by observing as under:- 4. The letter dated 13.02.2001, referred to by the ld. SDR was issued only by the Asstt. Development Commissioner to the Commissioner, .....

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ellants. The Tribunal in the impugned final order had held that Commissioner was not legally competent to proceed against the respondents/ appellants. The Tribunal in the impugned final order had held that Commissioner was not legally competent to proceed against the respondents/ appellants for want of proper sanction of the 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 .....

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f 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 appe .....

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on of the provision of Section 14(4) is reproduced below: (4) Clerical or arithmetical mistakes in any decision or order or errors arising therein from any accidental slip or omission may at any time be corrected by the authority by which the decision or order was made, either on its own motion or on the application of any of the parties; Provided that where any correction proposed to be made under this sub-Section will have the effect of prejudicially affecting any person, no such correction sh .....

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1. I also find that the data considered in the earlier order-in-original was relied upon the Annual Performance Reports submitted by the unit duly certified by the jurisdictional Central Excise. Considering new data or new facts cannot be encompassed under the ambit of clerical or arithmetical mistake, that have limited scope of correction of a mistake of writing or typing error or correcting a mistake made in calculation. The case before me is not to correct a clerical or arithmetical mistake b .....

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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. .....

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