2007 (12) TMI 137 - AT - Central Excise

EOU - revenue proceeded to deny benefit of not. 2/95 on the ground that assessee had not made any physical exports & also they are not entitled to clear goods to DTA - appellants had produced evidence before the Tribunal with regard to the actual physical exports - held that the supplies to World Bank & ADB which are considered as deemed exports would be taken into account for defining the DTA Quota - LOP has been extended at the appropriate time order of demand interest penalty set aside

Summary

Issues:
1. Mis-utilization of Notification 2/95 for clearances to DTA.
2. Ignoring physical exports and clearances to projects financed by World Bank and Asian Development Bank.
3. Lack of new production stream or trial production due to technology change.
4. Imposition of heavy penalties on the appellants and executives.

Analysis:
1. The main issue in the appeals was whether the appellants mis-utilized the provisions of Notification 2/95 for clearances to the DTA. The Commissioner demanded a differential duty, interest, and penalties from the appellants for allegedly not making physical exports. The appellants challenged this order, arguing that they had permission from the Development Commissioner for advance DTA sales, which should be respected. The Tribunal found that the appellants had evidence of actual physical exports and relied on a previous Tribunal decision that deemed exports to projects funded by international organizations should be considered for the DTA Quota calculation.

2. Another issue raised was the Adjudicating Authority's failure to consider the physical exports and clearances to projects financed by the World Bank and Asian Development Bank. The appellants argued that these should be taken into account while computing eligibility for clearances to the DTA. The Tribunal agreed with the appellants, noting that the Development Commissioner had extended the validity of the permission for the appellants to continue as a 100% EOU until 2010. Therefore, the impugned order was set aside as the appellants had time to fulfill conditions under the extended permission.

3. The question of whether the appellants had introduced a new production stream or trial production due to a technology change was also raised. The Commissioner concluded that they had not, but the Tribunal did not find this to be a significant issue given the circumstances of the case.

4. Lastly, the imposition of heavy penalties on the appellants and executives was contested. The appellants argued that any pre-deposit of the demanded duty would cause undue hardship due to financial losses. The Tribunal, after considering all arguments and evidence presented, allowed the appeals with consequential relief, setting aside the impugned order without prejudice to the Department's right to take action if conditions under the extended permission were not fulfilled by the appellants.