TMI Blog2001 (7) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs Central Excise (Appeals) Hyderabad, [hereinafter referred to 'the Commissioner (Appeals)'], confirming the duty demanded in respect of seven AR4s mentioned in its order and also imposing the penalty of Rs. 2,000 as illegal, arbitrary and unconstitutional. Later with the permission of this Court, the relief sought for was amended praying for the issue of Certiorari and to quash the order of Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to 'the CEGAT' or 'the Appellate Tribunal'), South Zone Bench at Chennai in Final Order No. 1163/2000, dated 16-8-2000 as illegal and arbitrary. 2.The brief facts leading to filing of this writ petition are as under :- The Petitioner Company is a 100% Export Ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her appeal before the Appellate Tribunal. The Appellate Tribunal on a preliminary issue held that the appeal is not maintainable in terms of the proviso to Section 35B(l), as according to the Appellate Tribunal the dispute relates to the goods exported outside India without payment of duty, therefore, the Tribunal has no jurisdiction. Thereafter the petitioner preferred a revision to the Central Government, as provided under Section 35EE. The revisional authority also, after going into the contentions of the Petitioner, found that the revisional authority has no jurisdiction, as the goods cleared were not exported by the Petitioner Company out were sold to various advance licence holders within the country and according to the revisional au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Counsel sought for either to remit the matter to the Commissioner (Appeals) so as to consider and decide the issue whether there were, in fact, sales within the country to the advance licence holders, which could be treated as deemed exports, which would decide the jurisdiction of either the appellate or the revisional authority to adjudicate the issue, after the same is decided by the first appellate authority, the Commissioner (Appeals). The learned Counsel alternatively contended that the revisional authority gave a categorical finding that the sales were affected within India to the advance licence holders. Therefore, an appeal lies to the Appellate Tribunal. Hence, the appellate authority may be directed to restore the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals). 7.The issue depends upon whether the sale of goods in question, in respect of which the duty is demanded, is export sale outside India or sold within India. It is not in dispute that the Petitioner Company is 100% EOU and in terms of the provisions of the Act and the Rules the Petitioner Company has to export 100% of its production, however, subject to the relaxations provided under the Act and the rules. It is also not in dispute that the Petitioner is at liberty to effect sales to the holders of advance licences, which are treated as deemed exports for the purpose of the provisions of the Act and the Rules. It is also not in dispute that the goods in question were cleared from the factory of the Petitioner for export unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority referred to the said claim that sales were affected within the country and preceded as if it is an admitted fact. The revisional authority also did not refer to any material placed before it for recording such a finding. On the other hand, the finding is "That out of the 7 AR4s of deemed exports 6 were clearance against Advance Licence and one was clearance to an EOU; that proof of receipt of goods in these cases and their warehousing are available with the applicant." Therefore, there is no clear finding whether the goods were exported to outside India by the Petitioner Company or sold within India. 8.Under the above circumstances, in the interest of justice, we deem it fit to quash the order of the Commissioner (Appeals) as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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