9911796707
TMI Blog2018 (7) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 dated 28.11.2007 has remanded the matter back to the Adjudicating Authority with the observation as contained in paragraph -4 of the Order, which is reproduced as under: "4. Taking into account the submissions made by the ld. Consultant, on behalf of the appellants and also taking into account the letter of the Development Commissioner dated 13.7.06 which was not before the original authority, we are of the view that the original authority need to verify from the Development Commissioner as to whether the export obligation period has indeed been extended and whether the appellants have fulfilled the export obligation within such extended period and have also achieved positive NFE for the relevant period. The original authority also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in terms of the conditions of the notifications and at the instance of the extension of time to achieve NFE by the Ld. Development Commissioner. Also the Development Commissioner has extended the LOP period. There is no case for the Customs confirming the demand as per Notification NO.137/2000-Cus. In this case the show cause notice was issued by the Development Commissioner for the violation of duty free import of various raw-material/capital goods of total assessable value of Rs. 569.55 lakhs during the period from Nov'2000 to Nov'2005 on account of violation to achieve NFEP and Contravention of violation of the provisions of the Customs Act, 1962 read with Foreign Trade (Development & Regulation) Act, 1992. The same was adjudicated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the impugned order for confirmation of amount of customs duty foregone for contravention of above mentioned notification. Ld. D.R. has stated that the Development Commissioner has only extended the LOP period but not the export obligation period and relied havily on the last paragraph of the Development Commissioner, wherein it is stated that as under: "This is, however, without prejudice to any other action that may be taken against the unit under any other Act & Rules in force" He therefore concludes that the demand of the customs duty foregone is not the provision of the Customs Act and this Adjudication Order by the Development Commissioner not comes in any way for the demand of duty for not realization of net positive NFE. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The apprehension of the customs authorities that the assessee may seek extension at the end of each block of five years with a view to evade payment of customs duty is without any basis, because, the Development Commissioner would grant extension of LOP only if he is satisfied that non-fulfilment of the export obligation, if any, is on account of genuine reasons. When the legislature has cast that responsibility upon the Development Commissioner to grant extension to 100% EOU in appropriate cases it cannot be presumed that even if the assessee violates the provisions of law the extension would be granted. In other words, in a given case, if it is found that that the assessee has violated the provisions of law it would be open to the Develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve the right of the Development Commissioner and customs/excise authorities to impose penal liability if the assessee has violated any provision of law other than the non-fulfilment of the export obligation for which extension has been granted. If the extension granted on 27th April, 2009 was not to operate as continuation of the 100% EOU status of the assessee, then, on expiry of the first block of five years, the development Commissioner would have imposed penal liability upon the assessee for non-fulfilment of the export obligation in the first block of five years. The very fact that the Development Commissioner has chosen not to continue with the penal action under the show cause notice dated 11th April, 2002 but to grant extension cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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