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TMI Blog2019 (4) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant sought permission from the Development Commissioner VSEZ to debond from 100% EOU scheme and switch to Export Promotion Capital Goods (EPCG) Scheme in terms of para 6.18 (e) of Foreign Trade Policy 2004-2009. In principle permission was granted by the Development Commissioner on 20.11.2008 subject to certain conditions mentioned in the letter. Based on such 'in principle' approval, the appellant approached the Dy. DGFT, Visakhapatnam and obtained EPCG authorisation dated 06.03.2009. Simultaneously, the jurisdictional Superintendent of Central Excise & Customs, Kakinada issued a letter dated 26.03.2009 stating that such conversion is not permitted as the appellant has not achieved positive Net Foreign Exchange (NFE). Their representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from EOU by way of permission granted by Dy. Commissioner, VSEZ, on payment of duties on capital goods under the prevailing EPCG Scheme, this was subject to fulfilment of NFE criteria amongst other conditions. The appellant contested the show cause notice on merits. Simultaneously, the Development Commissioner also issued a show cause notice dated 17.06.2010 proposing cancellation of "IN PRINCIPLE" permission granted to the appellant for conversion to EPCG Scheme, on 20.11.2008. This notice was issued by the Development Commissioner two years after granting 'IN PRINCIPLE' approval and more than one year after allowing final exit from EOU scheme vide speaking order issued on 25.06.2009. The proceedings against this show cause notice are stil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire issue revolves around who is the competent authority to decide the matters related to Foreign Trade Policy under which the appellants have been licensed initially as an 100% EOU and was subsequently allowed to switch over to the EPCG Scheme. The related issue is whether a decision once taken can subsequently be reversed by the Officers who have so decided. He relies upon the case law of Mantra Broadband Pvt. Ltd. as reported at [2011(272) ELT 243 (Tri.-Bang.)] (in which one of us Shri M.V. Ravindran was a Member) in which it has been held that when the Customs cannot initiate recovery without the concurrence of Development Commissioner in case of export obligations by the EOU. He also relies on the case law of Ahimsa Mines & Mineral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the final exit from the EOU Scheme was approved by the Asst. Development Commissioner, VSEZ. This chronology of events shows that Customs and Central Excise authorities were fully aware of the activities of EOU including the alleged non achievement of positive NFE, as indicated in the Superintendent's letter dated 26.03.2009. Thereafter, on the recommendation of the Development Commissioner, the Commissioner of Central Excise has permitted switching over from EOU to EPCG scheme. Based on the permission so granted, the Asst. Development Commissioner allowed final exit from EOU scheme on 25.06.2009. Under these circumstances, nobody can claim that the appellant has suppressed any facts or has imported any goods in violation of any notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner seeking to cancel the "In Principle" approval for conversion to EPCG scheme also does not carry their case any further as this is only a show cause notice and not a conclusion by the Development Commissioner. At any rate, much water has flown under the bridge from the time the 'in principle' permission was granted. Thereafter the Superintendent of Central Excise raised objections, the Development Commissioner recommended that they may be permitted to switch over from EPCG on the basis of which NOC issued by Asst. Commissioner. Based on such NOC, the Commissioner has permitted switch over. Based on such permission, the Development Commissioner gave final exit from EOU. There is nothing on record to show that appellants have suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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