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TMI Blog2017 (11) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of the above said notification as they have failed to export goods in terms of the LOP given to them and bond executed. The show cause notice dated 22/10/2008 was adjudicated by the Commissioner vide order dated 22/11/2011. The Original Authority held that the appellant is liable to pay Customs duty of Rs. 2,05,59,822/-. He also imposed equivalent amount of penalty under Section 112 (a). The goods imported by availing concession under Notification 53/1997-CUS were ordered to be confiscated with the permission to redeem on payment of Rs. 25 lakhs in terms of Section 125 of the Customs Act, 1962. The appellant filed appeal against this order, which was decided by the Tribunal vide final order No. 54591 of 2016 dated 28/10/2016. The Tribunal remanded the matter back to the Original Authority with the following observation :- "9. The impugned order has not given the proportionate benefit of the exports made by the appellant though it is a fact that their net foreign exchange earnings are not positive. However, considering the contents of Circular No.29/2003-Cus dated 3.4.2003 issued by CBEC [its clause 7 (vii)] and considering Condition 3 (d) of notification No.52/2003-Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which they had not produced the documentary evidence before the adjudicating authority. 11. Considering the above discussions and the case laws cited the impugned order is hereby set aside and the matter is remanded back to the Commissioner, Central Excise, Jaipur-I who shall decide it afresh in the light of the findings made above within four months of receipt of this order after giving opportunity of personal hearing and that of production of necessary evidence/documents. Misc. application is also disposed of". 2. The case was re-adjudicated resulting in the impugned order. The Commissioner again confirmed the demand of Customs duty of the above-mentioned amount and imposed equivalent amount of penalty under Section 112 (a). However, he did not order for confiscation of the goods. 3. Contesting the above findings in the denovo proceedings, the learned Counsel for the appellant submitted on the following lines :- (a) impugned order traveled beyond the scope of remand directions of the final order dated 28/10/2016 of the Tribunal. Instead of restricting the demand of Customs duty to the gap between foreign exchange outgo for the imports and the foreign exchange earned on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants maintained all records and submitted quarterly progress report and annual report with the Jurisdictional Excise authorities, the question of invoking extended period does not arise. Accordingly, no penalty also can be imposed on them. In fact, the penalty imposed on them is clearly held liable to be set aside by the Tribunal in the remand direction. In the denovo proceedings, the Original Authority ignoring the directions of the Tribunal again imposed penalty by reproducing the findings of the first adjudication order. 4. The learned AR contested the grounds of appeal. He submitted that the appellants did not establish the exports with clear supporting evidence. These evidences are to be filed to the satisfaction of the Adjudicating Authority and if called for the original records are required to be filed. The Commissioner did not act contrary to the directions of the remand order of the Tribunal. In the written submission, the learned AR stated that the Original Authority examined the remand order of the Tribunal and since the matter has to be decided afresh, proceeded to examine all evidences and to pass a fresh order. The remand is a open remand and no restriction was pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of Section 2 (f) of the Act. We hold that there is no basis or reason for the Original Authority to examine this aspect at all when there was no allegation made in the show cause notice. Even otherwise we note that Board vide circular dated 06/05/1997 clarified that a broader view is called for in respect of interpretation of the provision of EOU notification and the exemption may not be restricted only to cases where "manufacture under Section 2 (f) of Central Excise Act is involved". We also refer to the decision of the Tribunal in Unitech International Ltd. Vs. CCE, Vapi - 2012 (281) E.L.T. 109 (Tri. - Ahmd.), Tirumala Impex Vs. CCE, Visakhapatnam - 2010 (251) E.L.T. 240 (Tri. - Bang.) and Stone Age Ltd. Vs. CCE, Jaipur - I - 2016 (342) E.L.T. 286 (Tri. - Del.). As such, there is no merit in the finding of the Original Authority on this account. 8. The Original Authority again, acting beyond the scope of remand direction, held that FOB value of exports will include only physical exports out of country and shall not include deemed exports. We note that this matter has come up before the Tribunal on many earlier occasions. In Shree Rohini Enterprises (supra) it is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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