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2019 (3) TMI 717 - AT - Customs10% EOU - Jurisdiction - whether the adjudicating authority has jurisdiction to examine as to whether appellant has fulfilled export obligation by achieving minimum positive NFE or not under Notification No. 53/97-Cus and 01/95-CE or otherwise? - Held that - On perusal of N/N. 53/97-Cus. dated 03-Jun-1997, in its entirety, we find that the Central Government grants exemption from customs duty to goods imported into India for the purpose of manufacture of articles for export out of India, or for being used in connection with the production, packing or job work for export of goods or services out of India by 100% an EOU, as notified by the Board under Ministry of Industry, Department of Industrial Policy and promotion, subject to the conditions specified therein. It can be seen from the reproduced final Exit Order, the Development Commissioner has specifically held that appellant has achieved positive NFEP and fulfilled its export obligations as per the prescribed norms. This finding has not been challenged and attained finality. Though the Customs Authorities do not have jurisdiction to decide whether an assessee has fulfilled the export obligation, the Development Commissioner considered the provisions of the policy as applicable during the relevant period as it arrived at a definitive conclusion that the appellant has achieved positive NFEP and fulfilled its export obligations - thus it cannot be held that appellant has violated any of the conditions of the notifications. In any case, the re-computation of the NFEP by the Adjudication Authority is without any jurisdiction, especially when the Development Commissioner has found that minimum NFEP and minimum export obligations met. Even otherwise, minimum NFEP calculated by the Adjudicating Authority after the exports at Gopalapuram Mandal have exculded. We find that the Development Commissioner in final order has considered the proceeds from both the units, the adjudicating authority could not have re-computed the same after excluding the proceeds from one of the unit, this is especially so when development commissioner expressly considered its earlier order dated 03.05.2002 while holding that appellant has achieved net positive NFEP. In the present case, the appellant vide a specific application dated 15.04.2003 has sought exit from EOU scheme stating that it had achieved positive NFEP and minimum export performance as stipulated under the EXIM policy as on date. The Development Commissioner has examined the same and found that the appellant had achieved net positive NFEP and fulfilled the export obligations under the EXIM policy read with the handbook of procedures. Thus the findings of the Development Commissioner that appellant has achieved minimum NFEP and minimum export obligation, is in exercise of his powers under the EXIM Policy and as to be accepted by the authorities. Limitation - Held that - There could not have been any suppression or mis-statement of facts when it is held that there was no evidence of suppression or mis-statement in the orders dated 12.10.1999 - The Department was in appeal challenging the above order, before the Tribunal. The Tribunal finally upheld the order dated 12.10.1999 dismissed the appeal on 19.01.2004, in such conditions neither the show cause notice nor the Order-in-Original in question shown any different circumstances that demonstrate that the appellant had suppressed any information with a view to evade taxes - The allegation of suppressions with intention to evade duty cannot be upheld in the given facts and circumstances of this case. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Demand of Central Excise duty along with interest and penalties. 2. Demand of Customs duty with interest and penalties. 3. Jurisdiction of the Adjudicating Authority to examine fulfillment of export obligations. 4. Applicability of conditions under Notification No. 53/97-Cus and Notification No. 01/95-CE. 5. Calculation and fulfillment of Net Foreign Exchange (NFE) and Export Performance (EP). 6. Limitation and suppression of facts. Detailed Analysis: 1. Demand of Central Excise Duty: The appellant was required to fulfill export obligations under the 100% Export Oriented Unit (EOU) scheme. The adjudicating authority confirmed the demand of Central Excise duty for the period 01.08.1999 to 31.03.2002, asserting that the appellant failed to meet the export obligations. The appellant argued that they had fulfilled the export obligations as per the EXIM policy, which was confirmed by the Development Commissioner in the Final Exit Order dated 21.08.2003. 2. Demand of Customs Duty: The demand of Customs duty was also confirmed by the adjudicating authority for the same period, alleging violation of conditions under Notification No. 53/97-Cus and Notification No. 01/95-CE. The appellant contended that all imported and domestically procured goods were used in the manufacture of articles exported or cleared for home consumption on payment of full duty, and thus, there was no violation of the conditions specified in the notifications. 3. Jurisdiction of the Adjudicating Authority: The core issue was whether the adjudicating authority had the jurisdiction to re-examine the fulfillment of export obligations. The tribunal found that the Development Commissioner, as the jurisdictional authority under the EXIM policy, had already confirmed the fulfillment of export obligations and positive NFEP in the Final Exit Order. Therefore, the adjudicating authority did not have the jurisdiction to re-examine this issue without challenging the Development Commissioner's findings. 4. Applicability of Conditions under Notification No. 53/97-Cus and Notification No. 01/95-CE: The tribunal analyzed the conditions under Notification No. 53/97-Cus and Notification No. 01/95-CE, which required the appellant to fulfill export obligations as per the EXIM policy. Since the Development Commissioner had confirmed the fulfillment of these obligations, the tribunal concluded that the appellant did not violate any conditions of the notifications. 5. Calculation and Fulfillment of NFE and EP: The tribunal noted that the Development Commissioner had reviewed the export performance and confirmed that the appellant achieved positive NFEP and fulfilled the export performance as per prescribed norms. The adjudicating authority's recomputation of NFEP, excluding proceeds from one of the units, was found to be without jurisdiction. The tribunal emphasized that the EXIM policy's minimum NFEP and export performance requirements were met, and the Development Commissioner's findings were in accordance with the policy. 6. Limitation and Suppression of Facts: The tribunal held that there was no evidence of suppression or misstatement of facts by the appellant. The previous orders dated 12.10.1999 and the tribunal's final order dated 19.01.2004 had already concluded that there was no suppression with the intent to evade duties. Therefore, the extended period of limitation could not be invoked. Conclusion: The tribunal set aside the demands for Customs duty and Central Excise duty, concluding that the appellant had fulfilled the export obligations and achieved the requisite NFEP as per the EXIM policy. The appeals were allowed, and the impugned orders were set aside.
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