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TMI Blog2008 (7) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Development, Ministry of Industry, New Delhi. The other appellants-Shri Vijay Kumar Garg, Mrs. Vijaya Garg and Shri Anupam Sushil Garg are the Managing Director/Directors of this company. The appellant-company had imported capital goods involving Customs Duty of Rs. 6,78,63,747/- free of duty under Notification No. 126/94-Cus. and also procured indigenously manufactured capital goods involving Central Excise duty of Rs. 3,08,109/- free of Central Excise Duty, under Notification No. 136/94-C.E. for use in the production of cut flowers for export. The export obligation, as mentioned in the LOP was to be discharged within a stipulated period. The Commissioner of Central Excise, Meerut-I, by the impugned order dated 8-7-04 has- (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n within the stipulated period and thereby violated the conditions subject for which duty free import of the capital goods and purchase of indigenously manufactured excisable goods free of Central Excise Duty had been allowed. 2. Heard both the sides. 3. Shri J.M. Sharma, Consultant, ld. Counsel on behalf of the appellant made the following submissions: (1) The duty demands have been confirmed against the appellant-the grounds company and penalties have been imposed on the Appellant on the penalty on ground that the Appellant company did not fulfil the export obligation and thereby confravened the provisions of the Exim Policy and also the conditions of the Notification No. 126/94-Cus. and No.136/94-CE. The indigenous point as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner that the appellant-company has failed to meet the export obligation and on this basic confirming the duty demand against them and imposing penalties and ordering confiscation of the capital goods is pre-mature and totally wrong. (2) The Commissioner has erred in prematurely confirming the duty demand without debonding of the unit by the Development Commissioner/Board of Approval. The duty on capital goods has to be confirmed only after debonding on the EOU in accordance with the Exim Policy. The Customs authorities do not have the power to debond the EOU. In the case of Commissioner of Customs, Guntur v. Regency Ceramics Ltd. reported in 2000 (121) E.L.T. 384, the Tribunal in para 6 of the order has held that the Customs have no au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand, confiscating the goods under Section 111(o) of Customs Act and imposing penalties on the Managing Director and other Directors of the company under Section 112 of the Customs Act. 5. We have given careful consideration to the submissions of both the sides. There is no dispute about the fact that the duty exemption under Notification No. 126/94-Cus. and 136/94-C.E. is available subject to certain conditions -. i.e. meeting the export obligation within the stipulated period and achieving the net positive foreign exchange earning. The point of dispute is as to who is to determine as to whether a 100% EOU has fulfilled the conditions regarding meeting the export obligation and achieving net positive foreign exchange earning. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the conditions of the exemption Notification No. 13/81, dated 9-2-81 has been violated or remains unfulfilled. In this regard, it is seen that one of the conditions of the exemption notification is that the importer exports out of India 100% or such other percentage, as maybe fixed by the Board of articles manufactured wholly or partly from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board. it is thus clear that if the Board of Approval or the Development Commissioner concerned determines that the units failed to export the fixed percentage of articles for the specified period, then in such case it may be held that the conditions of the exemption notification has been viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Economic Consultancy Services, a Committee on Floriculture was set up by the Government under the Chairmanship of DGFT for recommending a strategy for rehabilitation of sick floriculture units, that it has been decided that in order make the Indian Floriculture industry viable, it has to be nursed back to health through a Rehabilitation Package for the sick units as well as through other initiatives, and that since the unit of the Appellant company is covered under the Rehabilitation Package, the issue of meeting the export obligation is to be kept in abeyance. Thus even till Oct'07, the issue of meeting the export obligation or achieving positive net foreign exchange earning had not been decided by the Development Commissioner. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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