9911796707
TMI Blog2018 (9) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... refore was not able to acquire the DTA sale entitlement. Upon which, the short levy was sought to be recovered from the respondent. The Commissioner of Appeals had also specifically spoken of the Development Commissioner's order dated 08.03.2002 dropping proceedings, which proceedings is stated to be confined to the review of export obligation of the applicant up to 31.03.2004. Despite the said finding, the Tribunal has not cared to examine the order of the Development Commissioner and has merely relied on the fact that there was dropping of the proceedings without verifying as to which proceeding was dropped by the Development Commissioner. The Tribunal had relied on Notification No.13/1981 to find that, without the Development Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT justified in upsetting the concurrent findings of the authorities below particularly when they are based on cogent reasons and relevant materials and based on the admission of the respondent that they failed to achieve the required export obligation and NFEP ? 2. On facts suffice it to notice that the assessee is a 100% Export Oriented Unit (EOU), who was granted permission for advance Domestic Tariff Area (DTA) sale as per Notification No.2/1995 produced as Annexure A. Annexure A permitted concession of customs duty in excess of 50% of the basic customs duty, additional duty and special additional duty, on domestic sales, of the units within Electronic Hardware Park (EHP) or a Software Technology Park (STP), who are also a 100% EOU. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in contravention of the dropping of the proceedings by the Development Commissioner. 4. The learned Standing Counsel for the Department submits that the Tribunal erred in so far as relating the DTA sales concession of Notification No.2/1995 to the permission required under Notification No.13/1981/Customs. It is also submitted that the Development Commissioner had, in fact, granted permission to proceed for short levy of duty. The dropping of proceedings even as per the order of the First Appellate Authority is with respect to the review of export obligation of the appellant up to 31.03.2004; which makes it abundantly clear that there was no extension granted to the respondent for satisfying the export obligation. Reliance is also pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion from the Development Commissioner, to proceed to recover the short collection of duty, in the context of non-compliance of NFEP within the stipulated time. The admitted fact is that the respondent did not comply with the NFEP, within the time stipulated in the order of the Development Commissioner. 6. We see from the order of the Deputy Commissioner of Customs that before proceeding with the same, the Deputy Commissioner has sought the permission of the Development Commissioner. It is also seen from the order produced at Annexure E that the letter of Ministry of Commerce dated 17.07.1995 provided that advance DTA sales should not be valid for more than 18 months and should be adjusted against the DTA sale entitlements, which may ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 31/1981 to Notification No.2/1995 and in any event, the Deputy Commissioner, who passed the original order, has by way of abundant caution ensured that the Development Commissioner's permission was obtained, as is evident from Annexure H. In the aforesaid circumstances, we find that the order of the Tribunal is liable to be interfered with. There is no satisfaction entered by the Development Commissioner of the export obligation having been complied with by the assessee. In fact the admitted case of the assessee is that the condition as per Notification No. 2/1995 was not satisfied by the respondent in the stipulated time prescribed in the order issued by the Development Commissioner granting the concession. There is also no power c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
