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TMI Blog2019 (6) TMI 1602X X X X Extracts X X X X X X X X Extracts X X X X ..... to the date of payment under Section 11A and Section 11AB of the Central Excise Act, 1944 (herein after referred to as 'Excise Act'). (iii) Confiscation under order Section 111(o) of the Customs Act, for the goods valued at Rs. 2,47,02,701/- (Rs. Two Crore Forty Seven Lakh Two Thousand Seven Hundred One only), however, option of redemption was granted to the appellant on payment of redemption fine of Rs. 1,50,00,000/- (Rs. One Crore Fifty Lakh only) under Section 125(1) of the Customs Act. (iv) Further, confiscation was also ordered under Rule 209 of erstwhile Central Excise Rules, 1944/ Rule 25 of the Central Excise Rules, 2002, the goods valued at Rs. 46,32,223/- (Rs. Forty Six Lakh Thirty Two Thousand Two Hundred Twenty Three only), however, option of redemption has been granted to the appellant on payment of redemption fine of Rs. 25,00,000/- (Rs. Twenty Five Lakh only) under Section 34 of the Excise Act. (v) Penalty was also imposed under Section 112 of the Customs Act, for Rs. 1,00,00,000/- (Rs. One Crore only) and other of penalty has been imposed under Rule 209 of erstwhile Central Excise Rules, 1944 and Rule 25 of Central Excise Rules, 2002 for Rs. 5,00,000/- (Rs. Five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 holding that the liability to recover the duty arises only at the time its debonding, which has not arrived till that date in view of extension of LOP which was extended till 31.03.2008. This appellate order was passed as per the remand order of CESTAT Final order No. 583/06-SM(BR) dated 10.04.2006 in earlier order in appeal No.138(SN)CE/JPR-I/2004. Therefore, the proceedings initiated by second and third show cause notice dated 29.10.2001 and 13.08.2008 respectively, were without the authority of law. Also, the confiscation that had been proposed in the impugned order is not sustainable in view of provisions of Section 111 of the Customs Act. Similarly, the confiscation proposed under Rule 2009 of Central Excise Rule, 1944 (here in after referred to as Excise Rules) is also not valid in case on hand. 5. The adjudicating authority also failed to notice that the import has taken place in between year 1996-1999 and proposal to confiscate the imported goods have been made in 2008, during that period the value of the imported goods has depreciated substantially, the appellant has also provided Chartered Engineers certificate in support of that, wherein it is stated that value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99, has exempted the goods specified therein, when imported into India or procured from public warehouse or private warehouse appointed under section 57 or 58 of the Customs Act, for the purpose of manufacture of articles of export out of India or being used in connection with the production or packaging of goods or services out of India by 100% export oriented units approved by the Board of approvals for such EOUs by the Ministry of Industry, (Department of Industrial Policy & Promotion) or the Development Commissioner concerned, from whole of the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975, and additional duty, if any, leviable thereon under Section 3 of the Customs Act. As per prescribed procedure the appellant/importer was required to as execute a bond with such a surety or security as prescribed, binding themselves for export of manufactured goods. The appellant failed to export goods during License Obligation Period (LOP) and also did not completely install the imported / indigenously procured machinery within a period of one year from the importation thereof, and also failed to obtain extension as required in terms of Notification, No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case are that the appellants were permitted to operate an EOU in 1995 subject to various conditions. The prime condition is that they have to manufacture and export the products from their units. They have not exported any product. After repeated extension of LOP, the same was terminated w.e.f. 1.4.2013. In fact the licensing authority, the Development Commissioner, Noida, categorically recorded the developments from the date of issue of LOP in 1995 and concluded that the appellants failed to fulfill the terms of the LOP and there is a violation of the FTDR read with FTP 2009-2014. As such, the violation of EXIM Policy and non-fulfilment of export conditions is clearly an admitted fact. Now, the contest against the present proceedings is only on the ground that before such termination of LOP by the Competent Authority, the Customs Authorities could not have been initiated proceedings. We note that though the technical objection is valid, at that time of issue of the impugned order all facts including the termination of LOP by the Competent Authority has been taken note of and duly analysed by the Original Authority. This much has been admitted by both the sides. During the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntatives on behalf of revenue has reiterated the findings contained in the impugned order. We have gone through the submissions made by both the sides and also perused the appeal records. 13. The appellant in the case has approached the Tribunal as many as four time against the various orders passed by the adjudicating authority/appellant authority on the same sets of facts and circumstances. In spite of quashing the demand/order against appellant by the Commissioner (Appeal) and the Tribunal, the adjudicating authority has been issuing the show cause notices on one pretext or other contrary to the provision of Customs and Central Excise Act. Once the order passed by the Commissioner on the same issue which has been set aside by this Tribunals and also by the Commissioner (Appeal), the re-opening of the issue amounts to non compliance of the order of the Tribunal/Commissioner (Appeal). Once the department has issued the show cause notice before the expiry of LOP and that has been decided in appeal, by setting aside that, the same issue cannot be revived by another show cause notice even after the extension of LOP period. In this case the impugned order is passed in terms of show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the Range Superintendent answerable to the Assistant Collector as to why documents of Modvat credit of Rs. 1,74,382/- under Rule 57-I should not be determined as recoverable, as the same was availed on duty paid on inputs, used for job work purpose. This notice was dated 30-1-96 and covered the period July '94 to December '94. The respondents replied this notice on 22-3-96, a personal hearing was granted and the appellants were heard by the Assistant Commissioner on 29-7-98 by an order dt. 9-4-99, this notice was withdrawn by the Assistant Commissioner. Meanwhile, another show cause notice dt 7-4-99 was issued by Deputy Commissioner answerable to the Addl. Commissioner for the period April, 94 to December, 94, on the same reasons proposing recovery of Modvat credit on inputs used in job work. This notice was for an amount of Rs. 3,86,488/- and also proposed why penalty under Rule 173(Q)(1) read with Rule 57-I(4) of Central Excise Rules, 1944 should not be imposed. The Additional Commissioner confirmed the demand under Rule 57-I(2) and imposed a penalty of Rs. 50,000/- (b) No new material when compared to the material in notice dt. 30-1-96 has been brought on record in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "......Further merely because the period of demand is different, there could be no alteration in the approach, as the basis for raising the demand remains the same, on which a decision is already taken earlier by the competent authority, and which has assumed finality by virtue of not preferring any appeal........." We are aware that in the case before us subsequent notice has been issued by an authority senior in rank to the Assistant Collector who ordered withdrawal of the demand for the period July to December, 94, which was not the case before the Bench in the case of Godrej Boyce Mfg Co Ltd. Yet we hold that merely because the demand is three months earlier in the show cause notice issued by Dy. Commissioner, being from April, 94 to December, 94 and the earlier demand notice was covering the period July, 94 to December, 94, we cannot uphold the plea of the learned DR that the demand for the period April to June, 94 should be remanded back for decision on merits, when we find that no new material has been brought by the Revenue to prove that the Respondents herein had not contested the earlier show cause notice on merits. In this view, we cannot uphold the plea that demands f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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