2006 (1) TMI 308

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....5. 1.2 On receipt of letter dtd. 14-8-96, from the said Development Commissioner, that the appellants had achieved added value addition to the tune of only 13.44% & 13.2% for the year 1993-94 and 1994-95 while as per the norms of Exim Policy then, they were to achieve 20%, therefore they were not entitled to 25% DTA. Clearances for the year 1993-94 & 1994-95. They were therefore not entitled to the exemptions. Duty demands were therefore issued by the Assistant Commissioner of Customs KFTZ vide notice dtd. 27-3-97. 1.3 The duty demanded vide order dtd. 15-10-99 was confirmed in appeal vide Order C-I/2701-2702/WZB/2000, dtd. 10-8-2000, it was found and ordered - (a)     The Commissioner's order seems to be co....

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....available to the appellant before the Commissioner adjudicates on the notice. We are also of the view that the Commissioner should give a finding on the other plea before us of limitation on the ground that the notice to show cause was issued before the period of 6 months specified in sub-section (1) of Section 11A and does not invoke the proviso to that sub-section. (c)     For these reasons we allow the appeal and set aside the impugned order. The Commissioner shall, after making available to the appellant copies of the documents that he relies upon, referred to earlier, and give it an opportunity of being heard, pass orders in accordance with law on merits as well as on limitation. and the matter was remanded. 1.4&....

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....ticee has submitted written submission dtd. 12-9-2001. In the said submission the noticee has tried to mislead the department by staring that the said three certificates were not taken into account by the adjudicating authority. Infact, at the time of first adjudication all the three certificates were taken into consideration and references were made to ascertain the correctness of the above figures. Both the authorities i.e. the Development Commissioner, KFTZ and the Dy. Commissioner of Customs incharge KFTZ informed that the required value addition has not been achieved. Here I would like to refer letter dtd. 31-12-96 (marked Annexure 3 of the submission made by the noticee) of the Development Commissioner, KFTZ, addressed to the party wh....

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....t be upheld; more so when the notice dtd. 27-3-94 does not invoke any penalty proposal under Section 11AC. The imposition of penalty under Rule 173Q read with Section 11AC as arrived and ordered in the order impugned, cannot be upheld in view of the settled position by the following decisions -           AVDEL India Pvt. Ltd. - 2004 (171) E.L.T. 201 (Tri. - Mumbai)           Freezair India Pvt. Ltd. - 2003 (152) E.L.T. 321 (Tri. - Del.)           And nothing contrary shown. Penalties are to be set aside. (b)     Instructions on the issue of notice and adjudication in case of FTZ/EOU h....