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TMI Blog2019 (1) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... llant for the manufacture and export of products on the basis of maximum utilization of plant and machinery had procured a LOP dated 22.11.2004 issued by the Assistant Commissioner, Special Economic Zone, Noida. The LOP was given for manufacturing of Pharmaceutical products and patent & Proprietary Medicaments with annual capacity of 600 Million Tablets & 150 Million Capsules. The LOP was amended on 07.02.2005, wherein 62 new products were entered, thereafter, entry list was also entered in the LOP vide letter dated 03.09.2007. Further, vide letter dated 25.05.2008, 20 new products were added in the LOP. Another request was made by the appellant on 03.11.2008, for addition of 44 new products. The appellant again moved an application dated 02.05.2011 to include 32 products in the original LOP. In the mean time, the NSEZ without adding the items requested by the appellant, extended the validity of the LOP for five years up to 12.05.2016. The appellant under the belief that the said applications to include new products will be issued the amended LOP from the date of filing the application. The appellant imported the raw material as well as sourced indigenously duty free under proper C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment Commissioner vide letter dated 07.09.2016 granted retrospective approval to 59 products out of 74 products. Further, the Development Commissioner sought certain clarification from the Policy Relaxation Committee and thereafter, vide order dated 21.03.2017, held that there has not been violation of substantive law and there is procedural lapse and condone the delay by imposing penalty of Rs. 1 lakh. During the pendency of proceedings before the Development Commissioner, the show cause notice issued to the appellant on 21.07.2014 for recovery of duty saved by the appellant for import of duty free goods by the appellant during the gap period. The matter was adjudicated by the adjudicating authority on 29.02.2016 confirmed the demand of duty saved by the appellant on inputs procured duty free. Against the said order, the appellant is before us. 3. The ld. Counsel for the appellant submits that there is no condition in Notification No. 22/2003-CE and Notification No. 52/2003- Cus both dated 31.03.2003, which requires for mentioning of each final product in the LOP. The exemption of duty free procurement of the inputs is allowed to "an EOU" and there is no requirement in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs against the appellant are not sustainable. 4. He further submits that demand issued against the appellant is barred by limitation as a demand for the period of 19.11.2007 to 07.08.2013 has been confirmed by the issuance of the show cause notice dated 21.07.2014, whereas the appellant was procured all the inputs on the strength of CT-3 certificate and all the procurement their inputs are in the knowledge of the Revenue. To support this contention, he relied on the decision of this Tribunal in the case of Moserbaer India Ltd. Vs. CC reported in 2015 (325) ELT 236 (SC) and CCE, Vs. Emcure Pharmaceuticals ltd. reported in 2014 (307) ELT 180 (Tri). He also relied on the decision of the Apex Court in the case of Blue Star Ltd. reported in 2015 (318) ELT 11 (SC). 5. He further submits that the ld. Adjudicating authority has misunderstood of the legal agreement as bond. It is his submissions that the agreement entered into by the appellant creates a contractual liability and the same shall be recovered by invoking the jurisdiction of competent civil court. To support this contention, he relied on the decision of M/s Wahid Sandhar Sugars Ltd. Fatehbad vide Final Order No. 199/2016-CHD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee and also specified the entitlement of assessee to clear specified quantity of goods. It is not a case where the assessee exceeded the limits of entitlement. Merely for the reason that there was a gap in obtaining the authorisation/permission for certain periods between two authorisations/permissions from the Development Commissioner, the benefit of Notification 2/95-C.E. cannot be denied. As regards wool waste and scrap, the Commissioner has rightly observed that as per 9.30 of the EXIM policy the assessee was entitled to clear the same into the DTA to the extent of 5% and the quantity cleared by the assessee is well within this limit. The finding of the Commissioner clearly reveals that the quantities of the various products cleared by the assessee into DTA is well within the quantity specified in the authorisations given by the Development Commissioner and it covers the period both prior to the issue of show-cause notice, as also during the period mentioned in the show-cause notice. There has only been a delay in getting the authorisations from the Development Commissioner; otherwise the clearance are in accordance with the authorisations given even though subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Development Commissioner and the Development Commissioner has dropped the proceedings against the appellant. Moreover, as per the CBEC Circular No. 21/95- Cus dated 10.03.1995, the demand of duty is required to be confirmed only after definite conclusion arrived at by the Development Commissioner and the CBEC Circular is binding on the authorities below. Therefore, in the absence of a definite conclusion by the Development Commissioner, no proceedings can be initiated against the appellant. Admittedly, ld. Development Commissioner has dropped the proceedings against the appellant therefore, the proceedings initiated by the adjudicating authority in the impugned order are contrary to the order of this Tribunal dated 19.09.2001 and also against the spirit of the CBEC Circular No. 21/95-Cus dated 10.03.1995. It is pertinent to mention here that order of the Development Commissioner dated 10.12.2002 and 02.08.2011 have not been challenged by the Revenue or concerned department therefore, the same has attained finality. Moreover, the orders passed this Tribunal dated 19.09.2001 and 08.08.2003 have also not been challenged by the Revenue and the same have also attained finality. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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