2007 (10) TMI 90 - AT - Customs

Clearance to (DTA) effected in pursuance of the permission granted in 1992 cannot be guided by subsequent restriction imposed in 1995 by DGFT Repeated SCN on the very same transaction are not permissible, so two separate adjudication & confirmation of two demands are not permissible

Summary

Issues:
- Appeal against the order of the Commissioner (Appeals) regarding demand of duty and penalty on clearance of goods by a 100% EOU.
- Validity of multiple show cause notices on the same transactions.
- Application of subsequent restrictions on clearances granted prior to the imposition of such restrictions.

Analysis:
1. Appeal against Commissioner (Appeals) Order:
The appellant, a 100% EOU, was granted permission to clear final excisable goods for DTA sales. However, they cleared goods valued at Rs.14,19,114/-, which exceeded the permitted value by Rs.9,16,207/-. Subsequently, show cause notices were issued proposing a duty demand of Rs.2,39,951/- on the ground of exceeding the permitted value. The original authority confirmed a demand of Rs.2,39,331/- and imposed penalties. The Commissioner (Appeals) upheld this order. The appellant argued that the repeated show cause notices on the same transactions were impermissible, citing a precedent.

2. Validity of Multiple Show Cause Notices:
The appellant contended that receiving two show cause notices for the same clearances, with the second notice including the amount from the first notice, was not legally permissible. The Tribunal agreed that proceeding with two separate adjudications and confirming two demands based on the same transactions was improper. Notably, no appeal was filed against the first demand notice. Therefore, the Tribunal deemed the order arising from the second show cause notice as not sustainable.

3. Application of Subsequent Restrictions:
The Tribunal considered the argument that clearances made in pursuance of permission granted in 1992 should not be bound by restrictions imposed in 1995. The subsequent restriction requiring exports within one year from permission did not apply to clearances made under the 1992 permission. The Tribunal found that applying the 1995 restriction retroactively to clearances made in 1992 was unjust. Consequently, the Tribunal set aside the Commissioner (Appeals) order and allowed the appeal with consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the Commissioner (Appeals) order due to impermissible multiple show cause notices on the same transactions and the unjust application of subsequent restrictions on clearances granted prior to the imposition of such restrictions.