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TMI Blog2024 (5) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... decision regarding any licence issued by the DGFT or Development Commissioner rests with such authority. Once the final exit has been given by the Development Commissioner, Customs has no authority to re-open the matter.' In view of the above cited judicial pronouncement and the issuance of order of order of De-bonding by the Development Commissioner, the respondents have no jurisdiction to initiate proceedings against the appellant as the appellants have already achieved positive NFE in the block period. Therefore, the proceedings against the appellants are not sustainable. Accordingly, the same are set aside - Appeal allowed. - HON BLE MR.ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Indranil Banerjee , Advocate for the Appellant Shri D. Sue , Authorized Representative for the Respondent ORDER Per Ashok Jindal : The appellant is in appeal against the impugned order wherein the demand of excise duty has been confirmed against the appellant for non-fulfillment of their export obligation. 2. The facts of the case are that the appellant is a 100% Export Oriented Unit (EOU) within the meaning assigned to those terms under the Forei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The Central Excise authorities, in turn, engaged the appellant in a series of correspondence on issues raised by the CRA. The appellant contradicted the audit s observation by submitting their own statistics to prove that they actually achieved positive NFE during the period September, 2011 to March, 2015 pointing out error in audit s method of calculating NFE. It was on account of achieving positive NFE that the Development Commissioner allowed exit from the EOU Scheme and therefore, audit s observation was wrong. Audit accepted appellant s plea of achieving positive NFE during the block period September, 2011 to March, 2015, but observed that since the appellant has failed to achieve positive NFE during the period September, 2011 to March, 2013 and also cumulatively during the first three years, i.e. up to March, 2014 of the running block period of five years, the exemption availed on DTA sale during that period was inadmissible in terms of Para 1 (h) of Appendix 14-I-H (HBP-V-1), which states that The DTA sale entitlement would accrue only if the unit has achieved positive NFE on cumulative basis . Accordingly, it was alleged that the appellants have alleged short levy of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to March, 2013. 3.5 He therefore, prayed that the impugned order be set aside and the appeal be allowed. 4. On the other hand, the ld.A.R. for the Revenue, supported the impugned order. 5. Heard both the parties and considered the submissions. 6. We find that the facts in this case are not in dispute that the appellant has achieved positive NFE within block period and also obtained de-bonding from the Development Commissioner. For ready reference, the same is extracted below : As the de-bonding certificate has also been issued by the Development Commissioner, the Revenue has no power to initiate proceedings against the order of the Development Commissioner as held by this Tribunal in the case of Transworld Business Corporation (supra), wherein this Tribunal has observed as under : 5. We have heard the parties and perused the case records. The issue involved in this case lies on a narrow compass. In this case, the Ld. Adjudicating Authority, has correctly held that the show cause notice is premature as the matter has not been decided by the Development Commissioner, FSEZ in case of appellant. The finding of the Ld. Adjudicating Authority finds it support from the two Circulars issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case, it is evident from the facts that on the record that the consent authorities, namely the Development Authority have not been obtained and as such the Show Cause Notice is bad on this score also. Accordingly, this appeal is allowed and the impugned order is set aside. The appellant shall be entitled to consequential benefits in accordance with law. 9. In the case of Mantra Broadband Private Limited (supra), this Tribunal has also examined the issue and observed as under : 11. We find considerable force in the submission made by the assessee that the impugned proceedings suffer from infirmity in as much as the adjudication had not followed the procedure to obtain concurrence with the Development Commissioner. We find that Circular No. 21/95-Cus., dated 10-3-95, the CBEC issued the following guidelines for the field officers to follow : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty. The appellants had cited the decision of the Hon ble Apex Court in the case of Ranadey Micronutrients (supra) in support of the claim that the Board s circular No. 21/95-Cus., dated 10-3-95 and Circular No. 122/95, dated 28-11-95 are binding on the departmental officers. 12. We find that the issue involved in the instant case is also nonfulfillment of export obligation. Capital goods had not been removed from the warehouse clandestinely or otherwise. We find that failure on the part of MBPL was that it had not used the capital goods procured under EOU scheme for manufacture and export of software. In such a situation, it was mandatory that the Commissioner obtained clearance from the Development Commissioner before initiating action against the EOU. The proceedings contrary to the binding Circular of CBEC is not maintainable. The impugned order is liable to be set aside. 10. In view of the above cited judicial pronouncement and the issuance of order of order of De-bonding by the Development Commissioner, the respondents have no jurisdiction to initiate proceedings against the appellant as the appellants have already achieved positive NFE in the block period. 11. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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