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2011 (3) TMI 228 - AT - CustomsDemand - 100% EOU - The learned counsel for the appellants submits that it is not the case of the Revenue that the capital goods were not installed in the factory and not used in the manufacture of the export products - Therefore, according to the learned counsel, the allegation of the department that the EOU violated condition No. 6(i) and (ii) of Notification No. 53/97-Cus. is not sustainable - The Development Commissioner has extended the LOP for 5 years w.e.f. 1.4.2009 - the learned Commissioner of Customs should consider this aspect also and determine the status of the EOU prior to 1.4.2009 Considering the fact that the dispute had already been carried through several rounds of litigation before this Tribunal and the Hon ble High Court, the adjudicating authority shall pass final order without unreasonable delay - Appeal is allowed by way of remand to the Commissioner for de novo adjudication of the dispute in accordance with law and the principles of natural justice - The learned Commissioner is expected to pass final order within a period of three months from the date of receipt of a certified copy of this order, with the cooperation of the appellants
Issues:
1. Demand of Customs duty from the Export-Oriented Unit (EOU) under Notification No. 53/97-Cus. 2. Extension of Letter of Permission (LOP) for the EOU. 3. Allegations of non-fulfillment of export obligations and achievement of Net Foreign Exchange Earnings (NFEP) and Export Performance (EP). 4. Consideration of the Development Commissioner's order dated 27.4.2009. 5. Need for de novo adjudication of the dispute. Analysis: 1. The appeals challenged the order demanding Customs duty from the EOU, interest on the duty, confiscation of goods, redemption fine, and imposition of penalties. The EOU contended that the demand would not stand if the LOP was extended. The Development Commissioner subsequently granted a 5-year extension of the LOP effective from 1.4.2009. The EOU argued that the exports were insufficient to meet NFEP and EP requirements, leading to the request for LOP extension. The Tribunal noted the need for the Commissioner to consider the EOU's status before 1.4.2009, as the LOP extension was not in the adjudicating authority's purview when the impugned order was passed. 2. The Tribunal highlighted that the original 5-year period for EOU operations had expired, and commercial production began in 1999. The EOU was required to fulfill export obligations within 5 years from the start of production, which expired in 2004. The LOP was extended from 1.4.2009, raising concerns about the EOU's status between 2004 and 2009. The Tribunal directed the Commissioner to consider this aspect and address the EOU's contentions regarding Notification No. 53/97-Cus. The Commissioner was instructed to issue a final order within three months with the cooperation of the appellants. 3. The Tribunal set aside the impugned order and remanded the appeals to the Commissioner for fresh adjudication in line with the law and principles of natural justice. The Commissioner was directed to consider the Development Commissioner's order from 27.4.2009 and evaluate the EOU's compliance with condition No. 6 of Notification No. 53/97-Cus. The Commissioner was urged to expedite the final order due to the prolonged litigation process. The Tribunal emphasized the importance of addressing all contentions and the need for a prompt resolution of the dispute.
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