TaxTMI 
TaxTMI 
2014 (7) TMI 737
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....ground that the appellant did not achieve the positive Net Foreign Exchange (NFE) during the period 2003-04 to 2004-05 and, therefore, the appellant was not eligible for concessional rate of duty under Notification No.23/2003-CE dated 31.3.2003. Consequently, the appellant violated the condition no. 2 of the said notification which stipulated that the benefit would be available only when the positive NFE is achieved during the financial year. In the present case, the appellant achieved negative NFE of Rs. 94.14 lakhs for the period 2004-05 and, therefore, the appellant was not eligible for the concessional rate and was required to pay duty at the normal rate. Aggrieved of the same, the appellant is before us. 2. The learned Counsel for the....
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....t is his further contention that the policy relating to achievement of NFE was amended in 2008 and as per the revised policy, the NFE condition has to be fulfilled over a period of 5 years. In the present case, the allegation of the department is only for two years i.e. 2003-04 and 2004-05 and if the five years' period is taken into account for calculation, then the appellant would have satisfied the condition relating to achievement of positive NFE. (ii) The learned Counsel also relies on the decision of the Hon'ble Bombay High Court in the case of Premier Electrodes & Others in Writ Petition no. 7916 of 2005 decided on 14.10.2009, where in similar circumstances, the Hon'ble High Court held that the appellant should hav....
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....Subsequently, there was another letter from the said Development Commissioner as dated 18.7.2011, wherein a contrary intimation was made showing that the appellant had achieved the positive NFE. The department was, therefore, required to make further reference to the Development Commissioner and after going through the previous correspondence, the Development Commissioner has confirmed that the appellant has failed to achieve the NFE and in fact achieved negative NFE of Rs. 94.14 lakhs. In these circumstances, the correspondences exchanged between the department and the Development Commissioner would not be of any help to the appellant. Since in 2010 itself the Development Commissioner intimated to the department that the appellant had fail....
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....lue. The revised NFE calculation sheet is enclosed herewith for information (Annexure - III). In view of the above, you are therefore requested to kindly arrange for recovery of duty as applicable after taking into consideration the advance DTA sale of Rs. 425 crore and the DTA sale of Rs. 543.88 crore for the year 2003-04 granted to the unit." The NFE calculations for the corresponding year were enclosed as relied upon document along with the show-cause notice issued to the appellant and, therefore, the appellant cannot take plea that they did not know that they had not achieved positive NFE during the year 2003-04 and 2004-05. In any case, since the appellant is claiming the benefit of exemption, it is for the appella....