TMI Blog2022 (7) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... said appeal shows that the issue of invocation of the extended period and limitation was specifically challenged by the appellant in paragraph 7 of the said appeal memorandum. It is seen that arguments on limitation were also raised by the appellant. The Tribunal, however, did not take note of the said argument nor gave any findings, presumably because the matter was being remanded on merit itself. In this background it is found that the observation of the Commissioner in the impugned order that the issue on limitation was not raised by the appellant before Tribunal is incorrect. It is also noticed that the remand order of Tribunal dated 16.05.2017 had also kept all issues open, which implies that the issue of limitation was also open. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Flex Foods Ltd. is a 100% EOU who was granted the Letter of Permission (LOP) for manufacture of freeze dried vegetable and tropical fruits, individual quick frozen mushroom, culinary herbs, vegetables and fruits and also dehydrated mushroom, culinary herbs, etc.. They obtained permission from the Development Commissioner Noida SEZ for DTA sale of certain products. Subsequently, at the time of DTA sale they charged payment of central excise duties. The Revenue authorities took the view that the goods cleared in DTA by the assessee were not conforming to the permission granted by the Development Commissioner for DTA sale. Accordingly, they proceeded to demand duty of Rs.3.09 crores by denying the concessional rate of duty available under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of FOB value of exports for the unit, as stipulated above. 4. In terms of the above provision the assessee has been granted LOP for three categories of products Air dried (AD), freeze dried (FD) and individual quick frozen (IQF). Even though the DTA sale permission was granted under the three broad categories of goods as above, the Revenue authorities went about working out the permissible DTA sales individually for each item such as carrot, bhindietc taking into account the exports made of that item, under the three categories. The lower authorities have held that the sale of specific products namely air dried, freeze dried and individual quick frozen basil, carrot, coriander, mint, French beans, parsley, etc. is in excess (all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the above tabulation of permissions the Development Commissioner has been giving the permission specifying the products differently from time to time. It is to be noted that the 100% EOU scheme is licensed and administered by the Department of Foreign Trade through the Development Commissioner. The letter of permission as well as the permission for DTA sale, on the basis of export obligation fulfilled by the EOU, is determined by the Development Commissioner. Accordingly, DTA sale as per LOP granted by Development Commissioner needs to be supervised and enforced by the Customs authorities. Hence, it is necessary for the Customs 6 E/51809/2015-EX[DB] E/52573/2016-EX[DB] authorities to monitor and ensure that the concessional rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly, we are of the view that both the impugned orders are required to be set aside and the issue remanded back to the Ld. Jurisdictional Commissioner for de novo decision covering the entire period in the two appeals. He will redetermined the eligibility for the concessional notification no. 23/2003-CE strictly in terms of the permissions granted by the Development Commissioner. All issues are kept open for the de novo decision . Additional evidence may be admitted as per law. 4. A perusal of above order of Tribunal shows that the issue of limitation was not been examined by Tribunal in its order dated 16.05.2017. The matter was earlier remanded for fresh examination of the manner in which the eligibility to the concessional Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , presumably because the matter was being remanded on merit itself. In this background we find that the observation of the Commissioner in the impugned order that the issue on limitation was not raised by the appellant before Tribunal is incorrect. It is also noticed that the remand order of Tribunal dated 16.05.2017 had also kept all issues open, which implies that the issue of limitation was also open. 7. In view of above the impugned order cannot be sustained and is, therefore, set aside. Consequently the appeal filed by the revenue, which solely relates to quantum of penalty, also becomes infructuous. The cross objection filed by M/s. Flex Foods Limited against revenue appeal also become infructuous. 8. In view of above, the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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