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TMI Blog2002 (1) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the exemption under Notfn. No. 13/81-Cus., dated 9-2-81 read with Notfn. No. 123/81-C.E., dated 2-6-81 as amended. They also procured indigenous capital goods/raw material without payment of Central Excise duty of Rs. 2,84,390/- and Rs. 15,86,663.40 respectively. 2. They were issued a show cause notice dated 10-1-1996 and its modification dated 22-1-1998 alleging that they had not fulfilled the export obligation and failed to export the entire production excluding 5% rejection for a period of 10 years and as such they had failed to observe the condition of the licence. In the same show cause notice a duty of Rs. 23,79,369/- was demanded in respect of the goods cleared vide AR-4 No. 3/92-93, dated 23-12-92 for which the party had failed to produce any proof of export. On consideration of the reply of the party, the Commissioner of Central Excise, Jaipur vide his order dated 15-3-2000 confirmed a demand of Central Excise duty of Rs. 18,71,053.40 on the appellants under Section 11A of the Central Excise Act, 1944 in respect of the capital goods indigenously procured. He also ordered for the confiscation of the indigenous capital goods and raw material lying with the party under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise, Jaipur as the proper authority to adjudicate cases pertaining to 100% EOU falling under his administrative control. It is also submitted that the appellants as a 100% EOU are voluntarily submitting to the jurisdiction of the Commissioner of Central Excise, Jaipur for all the administrative and legal purpose such as filing of Bonds, AR. 4s, reports, returns, and export obligations. Therefore, it is not open to them to challenge his authority in the present case. We find force in these submissions. The appellants are not contesting the aforestated circular of the Central Government conferring the control on the CCE, Jaipur over the 100% EOUs within his jurisdiction. It is also not in dispute that the Central Government has the power under the Customs Act to confer such jurisdiction on the Commissioners. Further more, the present case not only deals with the demand under the Customs Act but also with that under the Central Excise Act to which the appellants have raised no objection. In view of these facts and the position in law, we find no force in this preliminary objection raised by the ld. Consultant for the appellants and reject the same as untenable. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroneously refunded etc. The order for payment of duty under Section 125(2) would be integral part of the proceedings relating to the confiscation and consequential orders thereon on the ground as in this case that the importer had violated the conditions of notification subject to which exemption of the goods was granted, without attracting the provisions of Section 28(1) of the Customs Act. The ld. SDR further relied on the decision of Hon ble Karnataka High Court in Medical Relief Society of South Kanara v. Union of India [1999 (111) E.L.T. 327 (Kar.)]. In this decision the Court has observed that the goods which are exempted from payment of duty subject to any condition are liable to be confiscated in case the conditions subject to which the same are exempted from duty are not satisfied unless the non-observance thereof is sanctioned by the proper officer. The medical equipment (in the case before the court) was imported subject to the conditions that the petitioners continuously discharge the obligation of providing a medical, surgical and diagnostic treatment to atleast 40% of its outdoor patients and to indoor patients with a family income of less than Rs. 500/- per month. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission. Admittedly, the appellants were permitted to import the capital goods, component parts and raw material etc. as also to procure the same without payment of duty from indigenous sources by availing the exemption under the notifications cited in the opening para of this order. They were allowed this concession on the condition that they will export the entire goods viz., S.S. Cutlery - spoons and forks (excluding rejects to the extent of 5%) for a period of 10 years. Their installed capacity was approved as 5 million dozen pieces. They manufactured and exported the goods only up to December, 1992 when they shutdown their unit. Though we find force in their argument that they were not to show the export of 5 million dozen pieces of S.S. Cutlery which is only their approved installed capacity - but they did not fulfil the condition of exporting the goods manufactured by them up to a period of ten years as stipulated under the Industrial Licence dated 11-6-86 granted to them. The grant of exemption from Customs and Central Excise duty under the relevant exemption notification is sequel to the industrial licence issued to them. They have applied for debonding of their unit whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish the proof of export. We have considered these submissions. We have already held above that there is a continuous obligation for exporting the goods and no time-bar for the purpose of demand of duty would operate. The export of the goods under this AR-4 is also part of the same obligation. However, it is observed that under the proviso to Rule 12(1)(b), the Commissioner of Central Excise is empowered to allow rebate, even if all or any of the conditions laid down in any notification issued in this rule have not been complied with. We are of the view that on the principle of parity, these provisions can be made applicable to the export under bond also. Therefore, if the Commissioner of Central Excise is satisfied that goods are indeed exported, he may not demand duty even in the absence of the production of the AR-4. For this purpose, the case should be re-examined and appellants shall be afforded another opportunity to produce any collateral evidence to establish before the Commissioner that the goods under the impugned AR. 4 have been exported. 8. In view of the above analysis, we uphold the findings of the Commissioner that the capital goods cleared by availing exemption ..... 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