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TMI Blog2013 (8) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Gaur Impex [2009 (4) TMI 83 - MADRAS HIGH COURT] - All the appellants had to do was to get a certificate from the Development Commissioner that the appellants had fulfilled the export obligation and if they had fulfilled the export obligation, the Development Commissioner would ha issued such a certificate - It was surprising that the appellants were choosing not to get a certificate from the Development Commissioner which was, indeed, required also for their own purpose and instead they required that the Commissioner should make a reference to Development Commissioner and go on, waiting for a reply. Waiver of pre-deposit - The appellant had not been able to make out a prima facie case in their favor - Taking note of the fact that the period of dispute was 2001 to 2003 and nine years had already elapsed and the duty involved was more than Rs.2.5 Crores with equal amount of penalty - the appellant was required to make an additional small amount of pre-deposit - 35Lakhs were ordered to submitted – upon such submission rest of the duty to be waived till the disposal of appeal. - E /876 to 879, 1056/2011, C/295 to 299, 304 to 309, 432/2011 - S/2071-2087/WZB/AHD/2012 - Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat ld. Commissioner should first refer the matter to the Development Commissioner before adjudicating the same. It is his submission that the ld. Commissioner has just by passed the Tribunal's directions and substituted his own views for not following this specific direction. It is his submission that the appellant's consignment cleared to the consignees viz. M/s Pooja Tex Prints, M/s Pinkline Exim Pvt. Ltd., M/s Shivashakti Industries, M/s Singh Overseas, M/s Arya Dyeing Ptg. Mills, and M/s Al- Amin Exports, were under CT-3 permission and the in-bonding of the goods from the factory was recorded in these companies, which were also EOUs and it is his submission that the adjudicating authority has not given any finding on these evidences relied upon by the appellant. It is his submission that in any case, the second Show Cause Notice.dt.24.10.2007 is beyond the period of 5 years and at the most would cover the period of 4-5 months, whereas the demand for remaining 15 months is even beyond the period of 5 years. It is his submission that there is no finding on this crucial aspect. It is his submission that the finding of the adjudicating authority as regards non-functioning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he, other parties; on which the Customs duty/Central Excise duty has been foregone by the Department. 7. The first submission was that the adjudicating authority has not followed the clear directions given by this Tribunal in Final Order No.A /349-358/WZB/AHD/2010, dt.22.04.2010. It was submitted by the ld.Counsel that instead of following the clear directions, the adjudicating authority had proceeded to distinguish the case laws only by stating that the decisions relied were on the basis of CBE C circular which was issued for observing a specific procedure when there a demand on non-completion of export obligation by an EOU. 8. In this regard, we have to first take note of the fact that as observed by the Commissioner in the impugned order, after the order was passed by the Tribunal, the appellant had filed an application for rectification of mistake, which was decided by this Tribunal on 14.12.2010. In this order, while dealing with the specific submission that the Commissioner may not refer the matter to Development Commissioner and decide the issue and therefore this Tribunal gave a specific direction, and the observations of the Tribunal are as under:- "We find no mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, he reproduced the circular and has observed that only when a 100% EOU ceases the production prematurely or fails to commence production or export within the stipulated period and non-fulfillment of export obligation, the adjudicating authority has to wait for the decision of the Development Commissioner. This view is further supported by the decision of Hon'ble High Court of Chennai in the case of Commissioner of Customs (Sea) Chennai Vs. CESTAT - 2009 (240) ELT 166 (Mad.) . In this decision, M/s Gaur Impex had imported the material under advance licence scheme and diverted the same. The Tribunal had taken a view that the Department should have waited for completion of 18 months available to the importer for fulfillment of export obligation before raising the demand and it was premature. Hon'ble High Court held that if it is found that the importer cannot fulfill the obligation and when it is impossible for him to fulfill the obligation because of divergence of material already received, the Customs authority can act on its own. Hon'ble High Court proceeds to state further that such investigation can take place even after the discharge of export obligation by observing that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im, this would show that the appellant had, indeed, sent the goods to those units. In this connection, we have to observe that the recipients may not be able to show that they have not received the goods, in view of the fact that they had sent reware -housing certificate and therefore they may have to show that they have not diverted the material received from the appellant. In any case, what is required to be considered is the case against the appellant and each case has to stand on its own merit or fail. Therefore, we do not find it necessary to consider these submissions. 13. Under these circumstances, we find that the appellant has not been able to make out a prima facie case in their favour . In fact, this is second round of litigation and a detailed order has been passed for the second time by the original adjudicating authority, after considering all the submissions. Therefore, the submission of ld.Counsel that an amount of Rs.35 lakhs deposited during the first round of litigation would be sufficient, in our opinion, is not correct. Taking note of the fact that the period of dispute is 2001 to 2003 and nine years have already elapsed and the duty involved is more than Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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