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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 ..... ank authorities to counter verify the genuineness of the documents. Further, the fact of export or DTA clearance against foreign exchange realization can also be collaborated by various other contemporaneous documents, which the appellant submits, will establish to the satisfaction of the Original Authority, the facts as claimed by the appellant. Matteris remitted to the Original Authority to comply with the directions as contained in the final order dated 28/10/2016 of the Tribunal - appeal allowed by way of remand. - Customs Appeal No.51373 of 2017 - C/A/57221/2017-CU[DB] - Dated:- 18-10-2017 - Shri S.K. Mohanty, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri B.L. Narsimhan, Advocate for the appellant. Shri Govind Dixit, Authorized Representative (DR) for the Respondent. ORDER Per: B. Ravichandran The appeal is against order dated 01/05/2017 of Commissioner of Central Excise, Alwar. The appellants are engaged in the manufacture and export of recycled non-ferrous and ferrous metals. They were registered as 100% EOU and are having private bonded warehouse. The appellants availed the benefit of Notification 53/1997-CUS dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the exports made and the foreign exchange outgo for the imports made by the appellants as per the clarifications in the Circular No. 29/2003-Cus. (supra) and the contents of the Notification No.52/2003-Cus. referred above. 10. We find that the impugned order has also ordered confiscation of the raw material for which redemption fine of ₹ 25 lakhs has been imposed under Section 125 of Customs Act. There is no need of any confiscation of the goods if the assessee has used the said goods for manufacturing export goods. But for the remaining goods which were not used for manufacturing export goods they are liable to make payment of customs duty foregone on account of duty free imports allowed to them as an EOU in terms of Notification No.53/1997-Cus and the relevant bond filed by the appellant. 10.1 The impugned order also imposes penalty equivalent to the demand of Customs duty confirmed amounting to ₹ 2,05,59,822/-. In the light of above findings and discussions, this penalty is also liable to be set aside. 10.2 As per above discussion, we are holding that liability of duty against the appellant would be limited to the gap between the foreign exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me cases the originals were not submitted ; (c) The Original Authority acted contrary to settled position of law that FOB value of exports will include deemed exports. The Tribunal in the case of Shree Rohini Enterprises Vs. CCE 2017 (346) E.L.T. 461 (Tri. Ahmd.) maintained by the Hon ble Apex Court at 2017 (346) E.L.T. A137 (S.C.) held that value of deemed export is also to be taken into account for determination 50% of the FOB value of goods which will be permitted to be sold in DTA. Reliance was placed on various other decisions on this issue ; (d) the show cause notice did not at all allege anything about the process undertaken by the appellant being not amounting to manufacture. This issue has been discussed in the impugned order which is beyond the proposal made in the show cause notice. Even otherwise it is clear that all DTA clearances were made on payment of applicable Central Excise duty with the approval/supervision of Central Excise authorities. In such situation, there is no question of now disputing the process and duty paid clearances. Reliance was placed on decisions of the Tribunal and also Circular dated 06/05/1997 of the Board ; (e) admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 28/10/2016. One apparent thing which is clear is that in para 10.1 of the final order, the Tribunal categorically held that the penalty is also liable to be set aside. The reasons are also recorded in the order. The Original Authority in the remand order (para 32) verbatim reproduced para 33 of the earlier impugned order and proceeded to impose same amount of penalty. It is clear that the remand directions are not complied with in this aspect. 6. Further, we are not in agreement with the submissions of the learned AR to the effect that the remand directions are for deciding the case afresh in all aspects. A plain reading of the final order of the Tribunal makes it abundantly clear that the only role for the Original Authority in re-deciding the case is to find out the duty liability against the appellant limited to the gap between the foreign exchange outgo for the imports and foreign exchange earned on account of exports made. This is clear from para 10.2 and in the concluding para 11 of the final order of the Tribunal. The remand direction clearly stated that the Commissioner shall decide it afresh in the line of the findings made as above . We find no ambiguity or lack o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person of another company and also there were some over-writings and corrections on these documents. The learned Counsel for the appellant submitted that they have provided all the documents to the Adjudicating Authority. All the records were duly maintained by the appellants and the statutory records were also filed to the concerned authorities. They have submitted bank realization certificates, copies of challans evidencing payment of duty for DTA clearance against foreign exchange and statement showing details of all sales alongwith sample invoices. We find that in case of any doubt, the Original Authority could have referred to the concerned bank authorities to counter verify the genuineness of the documents. Further, the fact of export or DTA clearance against foreign exchange realization can also be collaborated by various other contemporaneous documents, which the appellant submits, will establish to the satisfaction of the Original Authority, the facts as claimed by the appellant. 10. In view of the above discussion and analysis, we set aside the impugned order and remand the matter to the Original Authority to comply with the directions as contained in the final order d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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