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TMI Blog2015 (10) TMI 2347X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 1944, after holding the appellant guilty of violations of conditions given in the Notification Nos.13/81-Cus dated 09/02/1981, 123/81-CE dated 02/06/1981 and 1/95-CE dated 04/01/95 by not fulfilling the export obligation. 2. Brief facts of the case are that M/s.Alexcon Extrusions Ltd., was granted letter of LI-EOB 107(89)/EO 223 (88) IL dated 08/06/1989 for setting up of a 100% EOU for manufacture of aluminium tube and tubings subject to fulfillment of certain conditions, viz., that the unit shall export its entire production for a period of 10 years or less from the date of commencement of commercial production as may be specified by the Government, the value addition shall be minimum of 36%, the undertaking shall execute a bond/l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee in spite of notice did not appear before the Commissioner for personal hearing. The assessee vide their letter dated 31/01/2004 submitted that their company had suffered heavy financial losses and eventually closed down with effect from 01/04/96. The bankers of the assessee initiated legal proceedings against the company and finally obtained court decree in their favour and consequently the bankers have taken possession of the assets and further that the company does not have any assets free from encumbrances from which it can meet its financial obligations. In view of this, the assessee requested to condone and grant them exemption from fulfilling their export obligation. 2.2 The learned Commissioner held that the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CC (Exports), Chennai Vs. KRM International Ltd., reported in 2014 (309) ELT 456 (Mad) and the case of CC, Tuticorin Vs. Pothys Cotton Products (P) Ltd. reported in 2014 (307) ELT 522 (Mad) wherein in both the cases the Honble High Court of Madras has held that after coming to force the provisions of Section 114A inserted by the Finance Act, 1996, a person is liable to pay penalty equal to duty. 3.1 The learned AR also cited the decision of the Apex Court in the case of Impression Prints Vs. CCE, Delhi reported in 2005 (187) ELT 170 (SC), in support of his arguments that the penalty provided under Section 114A of the Customs Act is mandatory in nature and the adjudicating authority has no discretion to reduce the same. 4. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase pertains to November 1990 to February 1996. It is also not in dispute that the provisions of 114A of the Customs Act, 1962 and 11AC of the Excise Act, 1944 came into force with effect from 20/09/1996. Further both these provisions have not been specifically made applicable retrospectively. The judgements cited by the learned AR in the case of Pothys Cotton Products (P) Ltd. (supra) and KRM International Ltd. (supra) are not applicable in the facts and circumstances of the case as the period involved in this case is from November 1990 to February 1996, when the provisions of Sections 114A and 11AC of the Customs Act were not in force. Both the penalty provisions are applicable prospectively and not retrospectively as held by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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