2017 (4) TMI 1203 - HC - Customs

100% EOU - whether the first petitioner should have obtained prior permission to undertake the domestic sale or not for it to receive the exemption thereunder? - Held that - The petitioner had proceeded on the basis of requirement of prior permissions in its reply to the show cause and in its approach to the Settlement Commission. The department has also proceeded on such basis. The Settlement Commission has passed the impugned order on such basis - it would be appropriate to set aside the order of the Settlement Commission impugned herein. The matter is remanded to the Settlement Commission to be decided afresh - appeal allowed by way of remand.

Summary

Issues: Challenge to order passed by Customs and Central Excise Settlement Commission regarding exemption for domestic sale by a hundred percent export-oriented unit.

The High Court of Calcutta addressed the challenge to an order passed by the Customs and Central Excise Settlement Commission in a writ petition. The first petitioner, a hundred percent export-oriented unit operating outside a special economic zone, was under scrutiny for undertaking domestic sales without prior permission. The petitioners argued that they were entitled to 100% exemption for domestic sales and that the notifications relied upon by the Customs Authorities did not apply. They cited previous court judgments in their favor. The department contended that the first petitioner was liable based on the notifications mentioned in the show cause notice. The court considered the arguments and materials on record.

The key issue was whether the first petitioner needed prior permission for domestic sales to avail the exemption under the notifications. The court noted that previous judgments, such as Plastic Processors and Satya Metals, held that prior permissions were not required. The first petitioner and the department had proceeded on the assumption that prior permissions were necessary, leading to the Settlement Commission's order based on this understanding.

The court observed that the contentions raised by the petitioners regarding the exemption were not presented before the Settlement Commission or in response to the show cause notice. Consequently, the court decided to set aside the Commission's order and remand the matter for fresh consideration in light of the petitioner's current stance. The parties were permitted to recompute the liability, and the Settlement Commission was directed to decide the issue of the notifications' applicability. The Commission was instructed to provide reasons for its decision.

In conclusion, the writ petition was disposed of without any costs, allowing the Settlement Commission to reconsider the matter based on the new arguments presented by the petitioners.