TMI Blog2001 (9) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Rules as detailed in the order itself. 2. The facts leading to the filing of the present appeal read as under :- The appellants are 100% EOU engaged in the manufacture of canned mushrooms. They were registered as such in terms of Letter of Permission (in short LOP) dated 29-3-90 by the Ministry of Industry, Department of Industrial Development. They imported capital goods and raw materials in terms of Notification No. 13/81-Cus., dated 9-2-81 and also procured certain capital goods and raw materials indigenously in terms of Notification No. 57/94-C.E., dated 1-3-94, free of duty. They manufactured and exported canned mushrooms during the years 1993-94 to 1996-97 as under :- 1993-94 Rs. 59.79 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of 100% EOU unit for non-fulfilment of the export obligations, only after a definite conclusion has been arrived at by the Development Commissioner. The impugned order, according to the counsel, is premature , and deserves to be set aside. 5. On the other hand, Shri Mewa Singh, SDR has reiterated the correctness of the order of the Commissioner. He has however, not disputed the issuance of the Circular No. 21/95-Cus., dated 10-3-95 issued by the Government of India, Ministry of Finance in respect of 100% EOUs closure/failure to export - Demand of duty. 6. We have heard Shri Kamaljeet Singh, Advocate and Shri Mewa Singh, SDR. 7. We have gone through the facts on record and have heard both the sides. 8. In our view, the contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be fixed by the said Board, or articles manufactured wholly or partly from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board. It is, thus, clear that if the competent authority namely the Board of Approval or the Development Commissioner concerned determines that the unit has failed to export the fixed percentage of articles for the specified period, then in such case it may be held that the conditions of the exemption notification has been violated. At this stage, it will be open for this Department to issue a show cause notice to the Unit for demanding the due duty on the imported goods. 3. Normally the customs authorities should immediately inform the Development Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty and confiscation of the machinery and goods, as detailed in the impugned order also cannot stand and are set aside. In this view, we are also fortified by the law laid down by the Tribunal in an identical case - Vishal Footwear Ltd. v. CC, New Delhi [1999 (114) E.L.T. 60 (Tribunal)]. In that case also, the duty was confirmed on a 100% EOU for having failed to fulfil the export obligations without the recommendations of the ld. Development Commissioner. The Tribunal quashed that order of the Commissioner and observed that the duty demand was premature and the proceedings could only be initiated only after the recommendations of the Development Commissioner. 12. In the light of the above discussion, the impugned order of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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