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TMI Blog2010 (4) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... to have obtained the permission from the Development Commissioner and sold the 'finished goods' in the DTA market after availing the benefit of Notification 2/95-C.E., dated 4-1-95. The original authority held that the appellants have sold the above imported materials without subjecting to processes which could be considered as amounting to manufacture under the Central Excise Act and that they have not exported any of the goods "manufactured" using the above imported raw materials and in fact they did not have any machineries to manufacture the final product as claimed by them and accordingly demanded Customs duty amounting to Rs. 32,90,827.13 along with interest and imposed equal amount of penalty under Section 114A of the Customs Act on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants duty free in the terms of Notification 133/94-Cus. dated 22-6-94. As per the appellants, they imported nylon yarn and subjected them to process of twisting and texturising and testing strength of the raw materials. They claimed that in respect of imported raw silk yarn also, they undertook twisting and texturising and strength testing. In respect of nylon tube, it is claimed by them that they imported nylon tube and subjected them to moulding, finishing and strength testing. The appellants claimed to have obtained the permission from the Development Commissioner and sold the 'finished goods' in the DTA market after availing the benefit of Notification 2/95-C.E., dated 4-1-95. The original authority held that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Tribunal in the cases of Nisith Impex Pvt. Ltd. v. Commissioner of Customs (Airport), Kolkata vide Order Nos. A-1881-1882/Kol/07, dated 19-11-2007 in Customs Appeal Nos. CDM-71/04 CDM-72/04 [2008 (223) E.L.T. 192 (Tribunal)] and in the case of Precision Processors (India) Pvt. Ltd. v. Commr. of Customs (FEPZ), Kolkata reported in 2007 (216) E.L.T. 233. In as much as the clearances are to be considered as of manufactured goods and since the clearances to DTA were under permission granted by the Development Commissioner, he submits that the benefit of Notification 2/95-C.E., dated 4-1-95, was correctly availed by them and therefore, seeks to set aside the order of the Commissioner. 6. Towards the end, he also submits that the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters referred to by the appellants, refer to letters written by the appellants, none of the letters written by the appellants have been produced before us. It is not clear whether the appellants made any claim before the Development Commissioner regarding actual export of final product, namely, nylon yarn, raw silk, yarn and nylon tube or undertook to export the final product in future and asked for permission in advance for clearance to DTA. As these documents were not produced, the finding of the Commissioner that the appellants have not exported any product manufactured using the imported nylon yarn, raw silk yarn and nylon tube, cannot be faulted. The permission to grant DTA sale under 9.9(b) of the Exim Policy relating to disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. However, we have given adequate opportunity to the appellant including opportunity to produce the relevant documents as per direction on the date of last hearing which was on 16-2-2010. In view of the above, we do not find any merit in the plea of violation of principle of natural justice. 11. The ld. Advocate submits that imposition of penalty on the appellant's firm and a separate penalty on the proprietor of the appellant's firm is not warranted. This submission merits acceptance. Further, we notice that there is no violation at the time of importation of the impugned goods, namely, nylon yarn, raw silk yarn and nylon tube. Therefore, we are inclined to set aside the penalty imposed under Section 114A of the Customs Act even. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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