2015 (10) TMI 418 - AT - Customs

Failure to fulfil export obligation Imposition of Duty, Penalty and redemption fines Appellant being 100% EOU failed to fulfil export obligation In 2007 Development Commissioner allowed appellant to exit from 100% EOU scheme however, proceedings were initiated by Revenue proposing to demand duty foregone on imported/indigenously procured raw materials and capital goods culminating in impugned order imposing duty, penalty and redemption fine Held that - Notification No.13/81-Customs provided for payment of duty on raw materials and consumables imported by EOU in case of failure to either fulfil export obligation or to achieve NFEP For period 1997-2002 appellants have not fulfilled obligation For subsequent period, he was allowed to exit scheme In view of observation, matter requires more detailed consideration Matter to be reconsidered by Commissioner Decided against Assesse.

Issues:
1. Fulfillment of export obligation by the appellant.
2. Liability of the appellant to pay duty on imported/indigenously procured raw materials and capital goods.
3. Definition of "manufacture" in the context of the activities undertaken by the appellant.
4. Consideration of alternative submissions made by the appellant by the Commissioner.
5. Need for a more detailed consideration of the matter by the Commissioner.

Issue 1: Fulfillment of export obligation by the appellant:
The appellant, a 100% Export Oriented Unit (EOU), failed to fulfill the export obligation as per the Letter of Permission (LOP) issued to them. The dispute arose regarding the fulfillment of obligations from 1997 to 2001, leading to a fiscal penalty. Despite subsequent permissions to utilize existing machinery for processing additional products, the Revenue initiated proceedings to demand duty foregone on imported/indigenously procured raw materials and capital goods.

Issue 2: Liability of the appellant to pay duty on imported/indigenously procured raw materials and capital goods:
The Commissioner held the appellant liable to pay duty of Rs. 5,21,27,308/- along with penalties and redemption fines. The appellant argued that duty liability on capital goods was introduced only in 2003, and they were not obligated to pay duty for the period before that. They also contended that for the subsequent period, they were not liable to pay duty as they had fulfilled export obligations, as per the Development Commissioner's view.

Issue 3: Definition of "manufacture" in the context of the activities undertaken by the appellant:
The Commissioner questioned whether the activities undertaken by the appellant, such as stabilization, stirring, and packing of Hydrogen Peroxide, constituted "manufacture." The appellant argued that their processes met the definition of manufacture as per the Foreign Trade Policy, which includes various processes beyond just production. They cited relevant case laws to support their argument.

Issue 4: Consideration of alternative submissions made by the appellant by the Commissioner:
The Commissioner's order contained contradictory observations regarding the appellant's submissions on duty liability and utilization of capital goods. The Commissioner failed to segregate the periods and obligations arising from them, leading to a lack of clarity in the decision-making process. The appellant's alternative submissions were not adequately considered in relation to the main issues at hand.

Issue 5: Need for a more detailed consideration of the matter by the Commissioner:
The Tribunal observed that the matter required a more detailed examination by the Commissioner, especially considering the evolving legal landscape and the contradictory observations in the order. Several decisions postdating the order needed to be taken into account, and the appellant should be given a fair opportunity to present their case before a final decision is made.

In summary, the judgment revolves around the appellant's failure to fulfill export obligations, their liability to pay duty on raw materials and capital goods, the interpretation of "manufacture" in their activities, the Commissioner's handling of alternative submissions, and the need for a more thorough consideration of the matter. The Tribunal suggested a reevaluation by the Commissioner, emphasizing the importance of considering all relevant legal aspects and providing the appellant with a fair chance to present their case.

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