TMI Blog2023 (4) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has not examined the fact whether the respondent have achieved a positive NFEE and whether the realization for deemed export was in convertible currency in EEFC; we also find that the learned Commissioner has not bothered to verify whether the respondent had any permission granted by the competent authority i.e. Development Commissioner to sell the goods manufactured by the EOU in domestic market - learned adjudicating authority was not correct in extending the benefit of Notification No. 2/95-CE dated 04.01.1995 to the respondents without verifying the relevant facts. In respect of shortage of raw material received during the period from 19.08.2001 to 25.03.2002, learned adjudicating authority appears to have accepted the contention of wrong recording of 4000 kgs in the Form IV Register on the basis of submissions of the respondents. However, it is quite clear in para I(2) on page 5 of show cause notice that such adjustment of 4000 kgs has been resorted to by the respondents twice and therefore, the balance was shown as 22650 kgs instead of 26650 kgs; thus it is found that on this account also, learned adjudicating authority is incorrect in calculation. Penalties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 53/97-Cus dated 03.06.1997; they were also procuring the goods from indigenous sources. An investigation was initiated against M/s Punjab Exports and on conclusion, a show cause notice, dated 06.06.2003, was issued alleging diversion of imported/indigenous goods procured duty free. The show cause notice proposed confirmation of duty of Rs. 5,62,20,888/- along with interest, penalties on various persons and a redemption fine on the goods of value of Rs. 8,16,67,820/-, allegedly liable for confiscation, was imposed. The show cause notice was adjudicated by Order No. 77/CE/2004 dated 28.10.2004. On an appeal filed by M/s Punjab Exports, this Tribunal vide Final Order dated 24.08.2006 remanded the matter back for cross examination and to examine the admissibility of benefit of Notification No. 02/95-CE dated 04.01.1995. The Order-in-Original No. 05/LDH/09 dated 19.06.2009, in the remand proceedings, was passed confirming the duty of Rs. 2,88,30,643/- along with equal penalty on M/s Punjab Exports; imposed redemption fine of Rs. 25 lakhs and penalty of Rs. 60 lakhs on Shri Vinod Kumar Garg. The Revenue is in appeal against the Order-in-Original dated 19.06.2009 for the reasons taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide the case. 4. We have perused the records of the case and considered the submissions made by the learned Authorised Representative. 5.1 We find that the learned adjudicating authority has clearly held that M/s Kansal Texo Tubes (P) Ltd was not a 100% EOU on the basis of the invoices issued under Rule 52(A) and 173(G); we find that learned adjudicating authority has totally ignored the assertion in the show cause notice that M/s Kansal Texo Tubes (P) Ltd was a 100% EOU; learned adjudicating authority has not carried out or got conducted any enquiry to come up such a conclusion. We find that the show cause notice as well as the submissions of the learned Authorised Representative, on the basis of the proceedings pertaining to M/s Kansal Texo Tubes (P) Ltd before Ahmedabad Bench of this Tribunal abundantly establish the fact that M/s Kansal Texo Tubes (P) Ltd was a 100% EOU; we find that the entire calculation by the adjudicating authority on the duty liability were arrived on the basis of the presumption that M/s Kansal Texo Tubes (P) Ltd was not a 100% EOU; as a result of which he concluded the ratio of imported/indigenous raw material to be 39.31:60.19. When the very ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods being cleared under paragraph 6.8 of the Export and Import Policy, for home consumption from the unit does not exceed 50% of the free on board value of exports made during the year (starting from 1st April of the year and ending with 31st March of next year) by the said unit; and (c) the balance of the production of the goods which are similar to such goods under clearance for home consumption, is exported out of India or disposed of in terms of paragraph 6.9 of the Export and Import Policy. Provided also that the clearance of goods for home consumption under paragraphs 6.8 (b) and 6.8 (h) shall be allowed only when the unit has fulfilled the minimum Net Foreign Exchange Earning as a Percentage of Exports (NFEP) prescribed in Appendix-I of the Export and Import Policy: Provided also that the clearance of goods for home consumption under paragraph 6.8(a) in excess of 5% of Free on Board value of exports made by the said unit during the year (starting from 1st April of the year and ending with 31st March of the next year) shall be allowed only when the unit has fulfilled the minimum Net Foreign Exchange Earning as a Percentage of Exports (NFEP) prescribed in App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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