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TMI Blog2024 (8) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... n of para 9.9(b) of the said policy has been changed and in place of the words "25% of the production in value term" the words "DTA sale upto50% of FOB value of Export" has been substituted from 01.04.99. Therefore, the DTA sale entitlement of EOU unit would be upto 50% of the FOB value of exports i.e. Physical/Actual Exports only. The Development Commissioner, Kandla has granted the required permission for advance DTA sales to the Appellant. Since, such DTA sale entitlement would be up to 50% of the FOB value of export of Physical/Actual Export only, and since, no physical/actual exports has been taken place except deemed export from the unit. The DTA sales made by the Appellant appeared to be incorrect as the DTA sales had been made against Deemed Export and not against the physical/actual exports hence, the said DTA clearances were not in accordance with the EXIM POLICY. Therefore, all sales towards DTA effected during the disputed period would not be eligible for payment of concessional rate of duty 50% of each of Customs Duty in terms of Notification No. 2/95 CE dated 04.01.95 or under any other relevant Notification and the duty liability on the above DTA sale will be of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d from 24.02.2000 to 27.04.2000, under Section 11A(2) [Now Section 11A(10)] of the Central Excise Act 1994 and erstwhile Rule 9 (2) of Central Excise Rules, 1944; and order for its recovery from M/s Kaybee Tex Spin Pvt. Ltd. (100% EOU), Surat. (ii) I impose Penalty of Rs. 46,03,738/- on them under Section -11AC(C) of the Central Excise Act, 1944. However as per sub-section (e)of Section -11AC of the Central Excise Act, 1944, such penalty shall be 25% of the duty amount confirmed at (i) above, subject to the condition that the duty determined in (i) above and applicable interest thereon as per (iv) below along with such reduced penalty are paid within 30 days from the date of receipts of this order. (iii) I also impose penalty of Rs. 4,55,88,132/- on them under erstwhile Rule 173-Q of the Central Excise Rules, 1944. (iv) I order to recover interest at the applicable rate, on the amount confirmed at Sr. No. (i) above, under the provisions of erstwhile Section -11AB of the Central Excise Act, 1944 from them. (v) I order to drop the demand of Customs duty amounting to Rs. 1,05,06,607/- on duty free raw materials which were imported/procured indigenously and were subsequently co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en an abnormal delay of 17 years in adjudication of the impugned show cause notices. As per the settled law adjudication has to be done within a reasonable time. Since the adjudication was not done with reasonable time the proceedings deserved to be dropped. He placed reliance on the following judgments. (i) Meghmani Organics Ltd. Vs. Union of India - 2019 (368) ELT 433 (Guj.) (ii) Apollo Tyres Ltd. Vs. Union of India -2020 (372) ELT 52 (Guj.) (iii) Union of India Vs. ATA Freight (I) Pvt. Ltd. -2023 (73) GSTL 581 (SC) (iv) Nanu Ram Goyal Vs. Commissioner of CGST and Central Excise, Delhi -2023 (74) GSTL 17 (Del.) (v) Commissioner of Central Excise, Bolpur Vs. Unnayak Prop- 2009 (243) ELT 212 (Tri. Kolkata) (vi) Collector of Cus., Mumbai Vs. Merzario Shipping Agencies Pvt. Ltd. -2000 (118) ELT 774 (Tribunal) (vii) Lanvin Synthetics Pvt. Ltd. Vs. Union of India -2018 (322) ELT 168 (Bom) (viii) J.M. Baxi & Co. Vs. Government of India -2016 (336) ELT 285 (Mad.) 5. He also submits that the differential duty demand of Rs. 46,03,738/- and of Rs. 6,27,839/- has been wrongly foisted vide impugned order. The impugned show cause notices wrongly proposed the demand duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant at the adjudication stage. He placed reliance on the following judgments. (i) Commissioner Vs. Ballarpur Industries Ltd. - 2007 (215) ELT 489 (SC) (ii) Commissioner Vs. Champdany Industries Ltd. -2009 (241) ELT 481 (SC) (iii) Reckitt and Colman of India Ltd. Vs. Collector -1996 (88) ELT 641 (SC) (iv) Prince Khadi Woolen Handloom Prod. Coop. Indl. Society Vs. CCE- 1996 (88) ELT 637 (SC) 8. He also argued that even otherwise the adjudicating authority has erroneously resorted to the provisions of Rule 8 and Rule 7A of the Customs Valuation (Determination of Price of Imported Goods) Rules 1988 for valuation of the subject DTA sales. In the very first place the adjudicating authority has erred in taking recourse to Rule 8 for valuing the subject goods on the basis of arbitrarily calculated average prices reflected in the show cause notices. Rule 8(2) of the Customs Valuation Rules specifically states that no value shall be determined under the provision of the rule on the basis of arbitrary or fictitious values. Thus the impugned order is patently erroneous and unsustainable. Furthermore; the provisions of Rule 7A have also been wrongly invoked in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscation of goods and levy of penalty is conditional upon the requirements of Section 11AC of the Central Excise Act 1944 being satisfied. In the present case neither of the two show cause notices alleged willful misstatement or suspension of facts with an intention to evade payment of duty. Thus the requirement of Section 11AC are not satisfied in the present case. Thus the adjudicating authority has wrongly invoked the provisions of Section 173Q of the Central Excise Rules, 1944 against the Appellants and imposed penalty on them. He placed reliance on the following judgments. (i) Prince Muliplast Pvt. Ltd. Vs. Union of India -2012 (276) ELT 48 (Guj.) (ii) Commissioner of Central Excise, Coimbatore Vs. Sutham Nylocots -2014(306)ELT 255(Mad.) (iii) Commissioner of C.Ex. Delhi vs. Ganpati Rolling Pvt. Ltd. -2016 (338) ELT 587 (Del.) 12. He further submits that in the present case the subject notice did not allege removal of any excisable goods in contravention of any of the provisions of the Central Excise Rules or contravention of any of the provisions of the said rules with intent to evade payment of duty. Thus there was no basis of invocation of provisions of Rule 173Q a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of allegation of undervaluation with any documentary evidence such as DTA invoices issued by other manufactures showing more DTA sale price than the Appellant at the relevant period in the year 2000. It is evident that the Appellant has submitted the data and details in their application for DTA sale to the Development Commissioner. Based on submitted details and scrutiny of the other records the Learned Development Commissioner had granted permission for DTA sale. It is not the case of the department that the Appellant had supplied goods in DTA in excess of the permitted value. The DTA sale was made to several independent buyers on principal to principal basis. There is not a whisper of allegation that the sale price for such DTA sale was depressed or suppressed or manipulated in any manner whatsoever. There is also not a whisper of allegation that there is any financial flow back from the buyers to the appellant or that there was any extra consideration received by the Appellant from buyers. In the instant case the department could not show any evidence that the transaction value declared by the appellant was not price actually paid by the buyer. There is also no docum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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