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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 ..... s were also not found. The Department also alleged that Respondents had not informed regarding commencement of production, and not submitted any returns as required, etc. Subsequently, on verification of the re-warehousing register which is required to be maintained by the Respondent in respect of duty free import of capital goods, consumables, etc., as also for the indigenous goods, certain discrepancies were noticed and the unit was asked to clarify vide letter dt.03.03.2008. It was pointed out that they have not been able to explain regarding non-availability of goods vis-à-vis CT3 issued by the Department for procurement of the same. They recorded a statement of one Mr. Mohammed Gayaz, authorized agent for the Respondent on 30.12.2008, wherein he admitted about importation of capital goods and consumables, which were procured indigenously. However, the Respondents have not made any exports of goods manufactured in their company and in fact, they were making third party exports by procuring goods from M/s Veerabhadra Minerals Pvt Ltd. He also stated that production started in the month of May, 2005. However, due to some labour problem, etc., they had transferred the balan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Notification 52/2003-CUS and condition 2(2b) of Notification 22/2003-CE. 5. Against the said order, the Department went in Appeal to the Commissioner (Appeals). The ground on which the Department went in Appeal is that the findings of the Adjudicating Authority with regard to non-contravention of provisions of Notifications 22/2003-CE & 52/2003-CUS is incorrect. The Department specifically alleged that the Adjudicating Authority has not given findings on non-achievement of positive NFE during the period 15.05.2005 to 30.04.2010, charge of non-installation of capital goods, charge of non-usage of imported and indigenously procured goods which resulted in non-production and non-fulfillment of export obligation. It was the case of the Department that the Respondent had committed gross violation by resorting to removal of goods illicitly, by not accounting for materials obtained free of duty etc., and in case of issues pertaining to non-achievement of NFE, Development Commissioner need to be consulted but not the ones like these where breach of provisions of warehouse and notifications have been alleged and that the Adjudicating Authority has erred by holding that the illicit remova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a clear contravention of condition 4(4b) of Notifications 22/2003-CE & 52/2003-CUS in as much as the Respondents failed to maintain proper accounts of removal and receipt of goods. There is also violation of Para 2(2b) of Notification 22/2003-CE in as much as the Unit has transferred indigenously procured capital goods and consumables to other 100% EOU. 7. Learned AR reiterates the grounds for filing Appeal by the Department and relies on certain circulars issued by the Board in support of the demand under the facts of the case. They have also relied on the following case laws:- a) Big Bags India Pvt Ltd Vs CC, Bangalore [2008 (228) ELT 400 (Tri-Bang)] b) Ravish Kamath Vs CC, Bangalore [2009 (234) ELT 238 (Kar)] c) Ravish Kamath Vs Commissioner [2016 (338) ELT A26 (SC)] 8. Nobody appeared on behalf of the Respondents. However, on record, we find that there is a letter dt.07.09.2023 from the Respondents furnishing certain documents pursuant to the observations and Order of this Tribunal dt.16.08.2023, where they were directed to produce certain documents. 9. The Respondents, in this case, were having a valid LOP and were required to manufacture and export certain quant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 22/2003-CE & 52/2003-CUS, which are in the nature of exemption notifications, subject to fulfillment of certain conditions. These notifications clearly provides for execution of bond for proper accounts of receipt, storage and utilization of such goods in addition to achieving positive NFE and also to comply with other conditions stipulated in the notifications as well as in the foreign trade policy. On failure in terms of the said bond, they will be liable to pay on demand an amount equal to duty leviable on goods along with interest, etc. Therefore, when the facts have been clearly brought out by the Department in their Appeal before the Commissioner (Appeals) indicating that the Original Authority has not dealt with the matter in terms of violations of various provisions of notifications, they have merit on such grounds in as much as the Commissioner (Appeals) only dealt with two major issues. Firstly, he has found no evidence to the effect that the goods were available or otherwise in the premises of M/s Veerabhadra Minerals Pvt Ltd and secondly, that there was an intimation to the Development Commissioner as well as the Assistant Commissioner of Customs. We do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, we find there are certain other conditions and especially various intimations like intimation for commencement of production, accountal of warehoused goods, movement of warehoused goods to another warehouse, non-accountal of utilization of capital goods, raw materials, consumables, etc., for which they had procured CT3 from the Department. Thus, 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. The case laws cited by the Department have been perused. 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, we find that if there is a clear case of non-fulfillment of condition for exemption notifications and there is an unauthorized ..... X X X X Extracts X X X X X X X X Extracts X X X X
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