2007 (6) TMI 454 - AT - Central Excise

Summary

Issues:
1. Condonation of delay in filing appeal due to improper service of impugned order.
2. Allegations against the appellants regarding non-fulfillment of export obligation under 100% E.O.U. Scheme and duty confirmation on imported goods.

Issue 1: Condonation of Delay:
The appellant sought condonation of delay of 680 days in filing the appeal due to improper service of the impugned order. The order was pasted on the factory gate, as no one was available to receive it, instead of being sent by Registered Post with Acknowledgment as required by law. The appellant argued that this mode of delivery was not in accordance with relevant sections of the Customs and Central Excise Act. They relied on a Tribunal's Larger Bench judgment which held that affixing the order on the factory gate was not the correct mode of delivery. The Tribunal noted that the impugned order was not dispatched by Registered Post with Acknowledgment Due, as required by law. The Department admitted that no responsible person was available to serve the order and it was served by pasting on the factory gate. The Tribunal allowed the COD application, considering the circumstances.

Issue 2: Allegations of Non-Fulfillment of Export Obligation:
The Revenue alleged that the appellants, operating under the 100% E.O.U. Scheme, failed to fulfill export obligations, leading to confiscation of goods and duty confirmation on imported raw materials and capital goods. The appellants contended that the Development Commissioner had permitted them to switch from the E.O.U. Scheme to the E.P.C.G. Scheme, making the impugned order infructuous. They referred to the Development Commissioner's order, which post-dated the impugned order, as evidence of the permission granted. The Tribunal agreed that the impugned order had become infructuous as the appellants were allowed to switch schemes. The matter was remitted back to the Original Authority to permit the appellants to function under the E.P.C.G. Scheme, subject to specified conditions in the Foreign Trade Policy 2004-09. The appeal and stay application were allowed by way of remand based on this finding.

In conclusion, the Tribunal addressed the issues of delay in filing the appeal due to improper service of the impugned order and the allegations against the appellants regarding non-fulfillment of export obligations under the 100% E.O.U. Scheme. The Tribunal allowed the condonation of delay application and found the impugned order to be infructuous due to the appellants' permission to switch to the E.P.C.G. Scheme. The matter was remitted back to the Original Authority for further action in accordance with the Development Commissioner's order and the Foreign Trade Policy conditions.