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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 ..... ns 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 3.1. M/s. Ready Foods Ltd. (RFL), Madanapalle was set up as an 100% EOU for the manufacture of Frozen vegetables and delicacies in terms of an LOP issued in 1992. RFL imported capital goods valued at Rs. 21.81 crores and availed of Customs duty exemption under Notfn. 13/81-Cus. They also procured indigenous capital goods and availed of CX duty exemption to the tune of Rs. 5.96 lacs in terms of Notfn. 123/81-CE. 3.2. RFL manufactured frozen products and made exports to the tune of Rs. 3.46 crores. But, by May, 1998 the manufacturing operations at RFL were stopped. 3.3. A show-cause notice dated 9.2.1998 was issued to RFL for clandestine production and clearances of finished food products into the DTA and renting out of capital goods and cold storage facilities without informing or obtaining the permission of Development Commissioner, Vizag SEZ and the Department. RFL has not denied or disputed the aforesaid allegations. They were asked to show-cause as to why (i) the unit should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pier 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 duty, interest, fine, penalty etc., as determined by this Tribunal in the present appeal or as determined by the proper officer, whichever is higher. Such an undertaking has been executed on 21.05.2012 and is in operation. 3.14. Since May, 2012, the factory premises is being used as DTA unit, while at the same time, the LOP issued by the DC, Vizag is also in operation till 06.04.2014. The case of Revenue as per the Appeal. 4.1. As may be gleaned from the Grounds of appeal, Revenues case is that as per Para 7 of the show-cause notice, the allegations against RFL were only for violation of the conditions of Notifications No. 13/81-cus and 123/81-CE applicable to 100% EOUs in regard to capital goods obtained duty free by RFL, clandestine clearances of finished goods into the DTA and failure to intimate commencement of manufacturing goods. 4.2. Revenue is of the view that the adjudicating authority has erred in coming to the conclusion that there is no ground for confirmation of demanding the duty foregone on the imported/indigenous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunals order by the Revenue, the orders of the Tribunal had attained finality and in both the orders, the Tribunal had taken a view that the decision of the Development Commissioner as regards validity of LOP is relevant and without taking that fact into account no conclusion should be reached and the learned Commissioner has rightly dropped the demand since LOP stands extended up to 06.04.2014 whereas the impugned order was passed by the Commissioner in 2010. 7. It would be appropriate at this stage to consider both the impugned orders of this Tribunal as to whether they can be considered as having attained finality and limit the role of the Commissioner to consider the validity of LOP for the purpose of demand or can the Commissioner go into other issues. The first remand order of the Tribunal was passed on 20.11.2000. The relevant portion of the Tribunal order in paragraph 5 reads as under: We set aside the impugned order and allow the appeals as remand for reconsideration of the entire matter afresh in the light of the Boards instructions and the export which the appellants might have effected in and/or extensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OP 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 is passed purely on the ground that LOP has been cancelled. The very fact that this was not done by this Tribunal but the matter was remanded to pass an order in accordance with law would show that that was an open remand. Therefore we are unable to agree with the learned counsel for the respondent that the order passed by this Tribunal was not an open remand and therefore the order passed by the Commissioner in terms of the impugned order does not require any interference. 9. Having considered the first objection raised by the learned counsel for the respondent and rejecting the same, now we come to the request made by the Revenue that the demand made in the show-cause notice should be restored and matter should be decided immediately in view of the fact that LOP expires on 06.04.2014 and the purchaser of the assets of the respondent has given an undertaking to pay the duty determined by the Tribunal or by the Assistant Commissioner whichever is higher. In our opinion such determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly 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 therefore we do not accept this ground of the Revenue that we should determine the duty liability. We leave it to the Commissioner to pass a fresh order in terms of the show-cause notice. At this stage the learned special consultant submitted that extension or otherwise of the LOP is not relevant. We are unable to agree with this submission in view of the fact that in the earlier two orders we have already taken a view that LOPs are relevant. That being the position we are not in a position to stay or come to the conclusion that LOPs are irrelevant. Therefore we have to necessarily direct the Commissioner that while passing a fresh order afresh, Commissioner should consider the new developments. In view of the above observations, the impugned order is set aside and the matter is remanded to the learned Commissioner with a request to adjudicate the matter afresh taking new developments into account in accordance with law. Needless to say the respondents shall be given reasonable opportunity to present th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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