2010 (3) TMI 413

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..... the unit? Whether the Tribunal was right in setting aside the duty and penalty in spite of the fact that the export obligation was not fulfilled by the Respondent? Held that- if an order is passed based on the consent and the matter is remanded at the instance of the Revenue that the Revenue cannot maintain an appeal. Therefore, dismiss the appeal only on the ground of maintainability. Accordingly, the appeal is dismissed
K.L. Manjunath and H.S. Kempanna, JJ. Smt. G. Lakshmi for Shri Y. Hari Prasad, Advocates, for the Appellant. Shri K.S. Ravi Shankar, Advocate, for the Respondent. [Judgment per : K.L. Manjunath, J.]. - The legality and correctness of the order passed by the CESTAT, Bangalore, in Appeal No. C/156/04 vide Final Order N .....

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..... not exported the same thereby failed to fulfill its obligation which resulted in negative Net Foreign Exchange and as a result show cause notice was issued calling upon the assessee why penalty should not be levied. 3. The assessee filed detailed reply stating that imported material on which exemption was claimed by the assessee has not been mis-utilised by it and that it had actually manufactured the goods but, unfortunately on account of failure of the foreign buyer in not lifting the material from the assessee, assessee could not export the same and it was lying in the warehouse. On account of breach of contract, the assessee initiated arbitration proceedings against the buyer which resulted in awarding of compensation to the assessee. .....

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..... l. 7. The main contention of the assessee before the Court is that the appeal filed by the Revenue is not maintainable since the order has been passed by the Tribunal on the submission of the representative of the Revenue. In the circumstances, he contends that since it is a consent order, no appeal would lie. 8. Per contra, learned counsel for the respondent-assessee contends that the judgment in Natural Stone Exports Limited has been questioned by the Revenue before this Court and therefore, the Revenue can question the order passed by the Tribunal. As a matter of fact, the appeal filed by the Revenue against the judgment in Natural Stones has also been dismissed by this Court in the year 2008 for non-prosecution. According to the learn .....

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