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TMI Blog2018 (1) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... y Iakhs only) within a period of three months from the date of receipt of this order. In case they choose to exercise this option, in addition to the amount of fine mentioned above, the Noticee shall also pay the amount of duty of Rs. 2,76,20,813/- leviable on the confiscated goods along with penal interest mentioned above. (iii) I confirm the demand of Central Excise Duty amounting to Rs. 3,72,7151- (Rupees three lakhs seventy two thousand seven hundred and fifteen only) leviable on the indigenous capital goods and raw material under erstwhile Rule 196 of the Rules read with Rule 20 of the Central Excise Rules, 2002 and Central Excise Duty amounting to Rs. 1,01,398/- (Rupees One lakh one thousand three hundred and ninety eight only) payable on the finished stock of canned mushroom under erstwhile Rule 9(2) of the Central Excise Rules, 1944 read with Rule 8 of the Central Excise Rules, 2002 and Section 11A of the Central Excise Act, 1944, along with interest at the appropriate rate we.f.28.9.96 under erstwhile Section 11AB of the Central Excise Act, 1944 read with Section 1 1AA of the Central Excise Act, 1944. (iv) I order for confiscation of indigenously procured capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have fulfilled the export obligations and there is no breach/ violation of any condition of Notification No. 13/81 dated 09.02.1981 or of 57/94-CE dated 01.03.1994. However, after due process of law, the ld. Commissioner has confirmed the demands and imposed penalties as enumerated in Para 1 hereinabove. 4. The matter was carried before this Tribunal and this Tribunal vide order dated 19.09.2009 set-aside the said adjudication order. Thereafter, the show cause notice dated 25.6.2002 was issued to the appellant by Development Commissioner, Ministry of Commerce and Industries, Noida. The said show cause notice was adjudicated vide order dated 10.12.2002 and the charges levelled in the show cause notice were dropped against the appellant. Thereafter, the application for rectification of mistake was filed against the order of this Tribunal dated 19.09.2001 and the same was dismissed by this Tribunal being without any merits. Thereafter, another show cause notice was issued by the Development Commissioner to the appellant on 12.09.2003. The said show cause notice was adjudicated by the Development Commissioner and he held that he cannot review the order-in-original dated 10.12.2002 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, this Tribunal passed the following order:- "8. In our view, the contentions raised by the ld. Counsel deserve to be accepted. The extract of the Circular No. 21/95-Cus dated 10.03.1995 issued by the Government of India, Ministry of Finance, reads as under:- Circular No. 21/95-Cus. dated 10-3-1995 Government of India Ministry of Finance (Department of Revenue) New Delhi Subject : Issue of show cause notice for recovery of Customs duty on goods imported by 100% EOU - Regarding. A number of instances have come to the notice of the Board where 100% EOU s had imported capital goods, raw materials and other permissible items under Notification No. 13/81-Cus., dated 9-2-1981 but have failed to export any goods or have closed down after exporting a few consignments. A question has been raised as to the stage at which the customs authorities should proceed to recover duties on imported goods and other goods lying in the factory premises of the 100% EOU. 2. The matter has been examined by the Board in the context of an Audit Objection and I am directed to say that the Board has taken a view that liability of customs duties on goods imported by 100% EOUs arises either at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he P.H. on 15.11.2002. It is seen that total import of capital goods, raw material etc. has been to the extent of Rs. 219.88 Lakhs whereas the exports as admitted by the local Central Excise authorities in the show cause notice, order-in-original as well as Appellant order passed by CEGAT to the extent of Rs. 248.55 lakhs. As such, NFEP achieved comes to 21% as against 20% as stipulated in Appx.-I of Exim Policy. Thus, there is no shortfall in NFEP. During the period when the unit was functional, there were no sectoral norms and as such as per Department of Commerce s instructions, the monitoring has to be done on the basis of actual imports and exports. The unit has been net foreign exchange earner in this respect. The arguments advanced and submissions made with regard to shortfall in E.O. by the unit have lot of substance and, therefore, I do not propose to impose penalty on the unit in this regard. This is also borne out from the various judgments cited by the unit in their reply and during the hearing. The charges in show cause notice are, therefore, dropped against the unit." 8. We further find that Revenue filed application for rectification of mistake in the order of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined this aspect of the show cause notice vis-a-vis the unit s submission in this regard. This show cause notice is seeking to review the earlier order-in-original dated 10.12.2002 in exercise of the power vested with the adjudicating authority under sub Section 4 of Section 17 of the FTDR Act. For the purpose of brevity and propriety, the relevant portion of the provision of Section 14(4) is reproduced below: "(4) Clerical or arithmetical mistakes in any decision or order or errors arising therein from any accidental slip or omission may at any time be corrected by the authority by which the decision or order was made, either on its own motion or on the application of any of the parties; Provided that where any correction proposed to be made under this sub-Section will have the effect of prejudicially affecting any person, no such correction shall be made except after giving to that persona a reasonable opportunity of making a representation in the matter and no such correction shall be made after the expiry of two years from the date on which such decision or order was made." 10. I find that the present show cause notice issued is not merely to correct the clerical or arith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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