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TMI Blog2024 (8) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, subject to certain conditions and admittedly, those conditions have been fulfilled by the Respondent in the said period. Therefore, this ground is no longer in breach in so far as the conditions required to be fulfilled by the Respondent is concerned. Several issues which have bearing on admissibility or otherwise of the Notifications in respect of which the Respondents have claimed exemption have apparently not been fulfilled and thus, these factual aspects should have been examined in detail by the Commissioner (Appeals), based on the evidence adduced by both sides, when the Department preferred an Appeal before the Commissioner (Appeals) against the OIO. In the case of Big Bags India Pvt Ltd (supra), there was evidence to suggest that Assessee was diverting the duty-free materials to local bonded warehouses, which has not been alleged in the present SCN, hence the facts are distinguishable. However, it is found that if there is a clear case of non-fulfillment of condition for exemption notifications and there is an unauthorized removal of goods, then merely meeting export obligation cannot lessen the gravity of offense. The Order of the Commissioner (Appeals) is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumables as well as the capital goods to one M/s Veerabhadra Minerals Pvt Ltd, which is also a 100% EOU, under intimation to the Development Commissioner, VSEZ, Visakhapatnam as well as to the Assistant Commissioner of Customs Central Excise, Nellore vide their letter dt.05.12.2007. 3. Thereafter, on the basis of records available, it was noticed that indigenous goods procured against CT3 without payment of duty amounting to duty foregone of Rs.24,40,895/-, and imported capital goods obtained without payment of duty under Notification No. 52/2003-CUS amounting to duty foregone of Rs.11,64,049/-, the Respondent had not given any intimation for receipt of these imported goods into the factory. It was clearly pointed out that the capital goods imported vide Bill of Entry No. 685590 dt. 06.03.2008, were not found in the bonded premises during the visit of Range Staff on 02.09.2008. Therefore, they came to the conclusion that the Respondent had never installed both the machinery imported and procured indigenously, nor commenced any production, nor exported any goods and have not fulfilled the export obligation and hence, not achieved the positive Net Foreign Exchange (NFE) and thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined without payment of duty as procedural lapse. The Commissioner (Appeals) has mainly relied on the fact that there is provision for removal of consumables and capital goods, both imported and indigenously procured, to another EOU in terms of notification cited supra and that there is a clear finding that there was an intimation dt. 05.12.2010 on record. Subsequent visits to the Respondent Unit on 31.12.2007 21.02.2008 were much after date of intimation i.e., 05.12.2007. He also noted that Appeal is silent on the fact whether the goods were available with M/s Veerabhadra Minerals Pvt Ltd, to whom the goods were repeatedly removed and that there is nothing on record which suggests that goods were removed before giving intimation, as was required under the provisions. Therefore, Commissioner (Appeals) rejected the Appeal filed by the Department against OIO dt.04.03.2011. 6. The Department is now in Appeal before this Tribunal against the OIA mainly on the following grounds:- a) The Appellate Authority has erred in holding that there was no contravention of provisions of Notifications 22/2003-CE 52/2003- CUS as the assessee has fulfilled the stipulated conditions imposed by the Deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Department is that when they visited the Unit, they did not find any imported capital goods and certain consumables. Similarly, they did not find any indigenously procured materials in respect of certain CT3s issued to the Respondent from time to time by the Department. It is also on record that when they recorded the statement, the concerned person informed them that certain capital goods and consumables were transferred to another EOU i.e., M/s Veerabhadra Minerals Pvt Ltd. Admittedly, there is provision for transfer of capital goods, consumables, etc., to another EOU in terms of extant Export-Import Policy. There is nothing on record whether any further verification was conducted to find out as to whether these duty-free imported capital goods/consumables as well as indigenously procured materials, which were not found in the premises of the Respondent, were in fact lying in the premises of M/s Veerabhadra Minerals Pvt Ltd. Therefore, it is very obvious that in so far as the issue relating to non-accountal and removal of duty-free capital goods and consumables, etc., is concerned, there is a clearcut violation as except for an intimation letter sent to the Development Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms, however, from the response of the Assistant Commissioner dt. 10.12.2007, it could be presumed that he was also aware about the intimation dt. 05.12.2007 whereby the Respondents had intimated about the transfer of certain capital goods to M/s Veerabhadra Minerals Pvt Ltd in terms of Para 6.13 6.15(b) of the Foreign Trade Policy. Further, even though on subsequent visit, which was on 31.12.2007, only 25 days after intimation, they noticed that there were no goods available in the Unit. There is also an interpretation that since the notifications and the Policy only provide for intimation for transfer of capital goods, consumables, etc., to another EOU, it does not amount to seeking prior permission for removal. However, in the facts of the case it is to be noted that there was a categorical response from the Department asking them not to remove goods vide their letter dt.10.12.2007. The Respondents have not brought anything on record to suggest as to when they had transferred these goods to M/s Veerabhadra Minerals Pvt Ltd and whether said facts were brought to the notice of Department when they received letter dt.10.12.2007. 11. We find that the whole issue is regarding non-ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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