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TMI Blog2014 (8) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... , C/808/2011, C/809/2011, C/810/2011-DB - Final Order Nos. 20838-20842/2014 - Dated:- 3-4-2014 - SHRI B.S.V. MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr. P.R.V Ramanan, Special Counsel For the Respondent : Mr. G. Shivadass, Advocate JUDGEMENT Per: B.S.V. MURTHY When the matter was called, the learned special consultant for the Revenue submitted a synopsis. After hearing both the sides and considering the submissions and going through the synopsis, we find that the synopsis reflects the facts correctly and also subsequently brings out the submissions in the case of the Revenue. Therefore we consider it appropriate that instead of dictating the facts and submissions, it would be more appropriate to reproduce the synopsis as such. 2. The present appeal filed by Revenue is against the Order of CCE, Tirupati dropping (a) demands of Customs and Central Excise duties amounting to ₹ 25.80 crores raised on account of violation of the conditions of Notifications No. 13/81-cus and 123/81-CE applicable to 100% EOUs and (b) proposals in respect of charging of interest and imposition of penalties on concerned individuals. Facts of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2009 to 6.04.2014. Based on the same, the permission for Customs Private bonded warehouse was extended up to 6.1.2014. 3.10. Order of CCE, Tirupati dated 28.09.2006 was appealed against and the Honble Tribunal, by its Order dated 07.10.2009, once again remanded the matter for fresh consideration in the light of the changed circumstances. 3.11. Following the remand order of the Tribunal, CCE, Tirupati, by her OIO dated 24.09.2010, dropped the duty demands and interest thereon as also the proposals to impose penalties relating to capital goods, but confirmed the duty demand in respect of clandestine clearances of finished goods. RFL paid the duty so adjudged. It is this OIO, which has been presently appealed against by Revenue. 3.12. In the meantime, the unit was purchased by M/s. Global Nutri Foods Pvt. Ltd. [GNFPL] through ARCIL (Assets Reconstruction Company Ltd.) under the SARFESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest) Act, 2002. Since May, 2012, GNFPL is the occupier of the factory premises. 3.13. GNFPL has been permitted to function as a DTA unit subject to the condition that they would undertake to pay the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done. This underscores the urgent need for an early decision. 5.2. The question for determination is whether the duty demand should be placed at ₹ 25.80 crores as indicated in the show-cause notice or at ₹ 6.43 crores as on the date of undertaking executed by GNFPL in favour of Revenue. 5.3. Revenue would urge that demands of Customs and Central Excise duties amounting to ₹ 25.80 crores raised on account of violation of the conditions of Notifications No. 13/81-cus and 123/81-CE applicable to 100% EOUs and proposals in respect of charging of interest and imposition of penalties on individuals concerned in terms of the show-cause notice may be upheld in full. Hon ble Tribunal may order recovery on the above terms. 6. The learned counsel for the appellants contested the submission that Commissioner had erred in passing the impugned order dropping the demands in their entirety. It was his submission that Commissioner has implemented the remand order issued by the Tribunal correctly and properly and in the absence of any appeal filed against the Tribunals order by the Revenue, the orders of the Tribunal had attained finality and in both the orders, the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of the LOP and pass a fresh order as deemed fit in accordance with law. The appellants will be given an adequate opportunity of hearing before passing a fresh order. Normally when direction is given to pass a fresh order in accordance with law, it means it is an open remand. In this case an additional provision has been given to the Commissioner saying that the Commissioner should take into account the new developments including the validity of LOP. In fact another point which supports our view that the Tribunal wanted fresh consideration of all the issues is the fact that there was an observation that the impugned order was based on cancellation of LOP and there is a new development in the sense that the LOP has been extended up to 06.04.2014. If the Tribunal was convinced that the entire order was a result of cancellation of LOP, the moment the LOP was extended, normal course would have been to set aside the order and direct the department to take up the issue as and when LOP expires. If an order is passed on only cancellation of LOP, the moment the cancelled LOP gets reviewed and extended, naturally the obvious step when an appeal is filed is to set aside the order which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to go into all these aspects and we would not have gone into these aspects but for the request made by the Revenue and but for the fact that the undertaking given by the purchaser of assets has been placed before us and has become part of the record and the fact that CBEC has given permission for the purchaser of assets to convert the unit to DTA unit were not brought on record and brought to our notice. Once the facts are brought on record, we will be failing in our duty if we do not take them into account at all and pass an order keeping ourselves blind of these factors. 10. Suffice to say that the ground taken by the Revenue that Commissioner should have adjudicated the show-cause notice and should not have limited herself to the LOP acceptance granted by Development Commissioner alone has to be sustained and therefore the impugned order has to be set aside and we do so. At the same time as submitted by the learned counsel for the respondent, we cannot determine the duty liability especially in view of the contentious issues involved and summarized above by us at this stage. We have to leave it to the appropriate authority who should do so in accordance with law and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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