TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 436
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....ended upto 31.03.2010. During the year 2012, the Customs at ICD, T KD sought a clarification from the jurisdictional Central Excise officer as to whether appellants were a functional EOU or not, in which case they would not be eligible for drawback. The Central Excise authorities clarified that the appellant had never functioned as an EOU as they could not get the premises customs bonded within the validity period of LOP. Based on this clarification, Customs ICD, T KD released all the pending drawback claims of the appellants. Subsequently, in the year 2014, the DRI initiated fresh investigations into the matter and came to the conclusion that as the appellants were EOU since they had sought benefits from the Income Tax authorities under Section 10B of the Income Tax Act, 1961 which is available only to an 100% EOU. On the basis of this allegation, the show cause notice was issued to the appellants proposing recovery of draw back sanctioned and paid to them during the period 2006-07 to 2009-10. The appellants contested the show cause notice on the premise that the appellant's unit is not an EOU as they have no customs bonded premises and therefore, the unit of the appellant is ....
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....o appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, - (a) any goods imported or exported as baggage; (b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination; (c) payment of drawback as provided in Chapter X, and the rules made there under:" As per the said provisions, against the order of Commissioner (Appeals) with regard to payment of drawback, as per proviso and Chapter X and Rules made there under, the appeal will not lie before this Tribunal. We find that admittedly, against the order of Commissioner (Appeals), dealing with the issue of drawback, appeal is not maintainable before this Tribunal. To that effect, the decision in the case of CCE, New Delhi Vs. DCS International Trading Company Pvt. Limited - 2017-TIOL-2093-CESTAT-DEL is applicable. 5. We find ....
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....al under Section 35G and the other party under Section 35L of the said Act. Further, the respondent may be denied right to file cross objections. It is noticeable that in the first round also, against the order of the Tribunal, an appeal was preferred before the Supreme Court by the assessee. 2. In these circumstances, the appeals are returned as they are not maintainable before the High Court. It is open to the appellant-Revenue to file an appeal under Section 35L of the Central Excise Act, 1944, if so advised, and in accordance with the law." We, however, must express a reservation regarding the observation that the issues and contentions decided in the order-in-original would determine whether an appeal would lie in the High Court under Section 35G or in the Supreme Court under Section 35L. In our view, it is not the order-in-original i.e. the order of the adjudicating authority but he order of the Tribunal that would determine the issue as to whether the appeal lies to the High Court under Section 35G or to the Supreme Court under Section 35L. Section 35G provides for an appeal to the High Court from every order passed in appeal by the appellate Tribunal. It is, therefore, t....
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....al class. I find that it is on record that the appellant had set up a unit as 100% EOU and letter of permission to this effect was issued by NSEZ authorities. I find that the fact, which is undisputed, is that at the time of exportation, tie appellant unit did not disclose their identity of being an EOU to Customs and claimed duty drawback on the exported goods. I find that having been accepted the terms and conditions of LOP through executing Legal Undertaking (LUT), it was incumbent upon the appellant unit to declare the true status of unit while exporting the goods from India. Fron3 perusal of ANNEXURE A regarding Details relating to the claim by the exporter for deduction under Section 10 of the Income Tax Act, 1961 for the Assessment year 2007-08, I find that date of commencement of manufacture of production is shown as 01.06.2000. I find that claim of the appellant that unit was non operational fall flat on this count only. From combined reading of the provisions of Customs Act, 1962, Foreign Trade (Development Policy) Act, 1992, Foreign Trade (Regulation) Rules, 1993, Customs & Central Excise Duties Drawback Rules, 1995, it is evident that the regulations relating to All Ind....
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.... circumstances of the particular case and I find that all the sad judgments were case specific and need to be applied provided the conditions/circumstances remains same. Further, there was nothing on record to suggest that the circumstances/conditions which prevailed in these judgments were existing in the present case. The appeal filed by the appellants does not merit consideration." We find that in the impugned order, the Ida Commissioner (Appeals) has examined the issue whether the appellant unit is an 100% EOU or not and held that appellant is 100% EOU and therefore, dismissed their appeals. Therefore, in the spirit of the judgment of the Hon'ble High Court of Punjab & Haryana in the case of M/s. Raja Dyeing (supra), from the impugned order itself, it can be seen that the issue has been considered in the impugned order and that is the grievance of the appellant. Admittedly, in the impugned order, Id. Commissioner (Appeals) has decided the issue whether the appellant is 100% EOU or not and the same is the prayer of the appellant before us. In that circumstance, we hold that, in terms of Section 129A, the appeal is maintainable before the Tribunal. 8. Now, we deal with the meri....
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....s per the clarification given by the office of the Commissioner of Customs, ICD, Tughlakabad dated 24.07.2012 that the appellant has never functioned as an EOU and released the pending drawback claims. We find that without customs bonding, the unit cannot be considered as an EOU. Further, as per the Customs Manual of supplementary instructions, Para 3.4, which is reproduced below, the EOU must be custom bonded:- "3.4 On approval for setting up an EOU by Unit Approval Committee, a letter of Permission (LOP/LOI) is issued by the jurisdictional Development Commissioner. It mentions inter alia the capacity and items of manufacture and export, capital goods permitted to be imported/ procured. Thereafter, the unit has to execute a legal undertaking with the Development Commissioner The LOP/ LOI issued is construed as a license for all purposes. After obtaining the LOP and execution of legal undertaking, the unit is required to apply for a license for Private Bonded Warehouse and In-bond manufacturing sanction order under provisions of section 58 and 65 of the Customs Act, 1962 respectively from the jurisdictional Assistant/ Deputy Commissioner of Central Excise and Customs." In fact, w....
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....the present appeal before the Tribunal. The reasons for my disagreement are recorded as below: a) The present proceedings emanated by issue of SCN dated 04.09.2014 by the Joint Commissioner of Customs (ICD), Tughlakabad. The SCN proposed a denial of drawback amounting to Rs. 6.91 crores and sought to recover the same under the provisions of Rule 16 of Customs and Central Excise Duties Drawback Rules, 1995. b) The notice was decided by the original authority vide order dated 19.10.2015. The original authority held that the drawback amounting to Rs. 6.91 crores is to be denied and the amount already sanctioned was ordered to be recovered under Rule 16 ibid. The order also decides regarding confiscation of goods and penalties on the appellant. c) The Commissioner (Appeals), vide impugned order dated 10.07.2016, upheld the original order. He categorically held that drawback as claimed by appellant is not available to them as held by the original authority. d) Drawback Rules, 1995 were framed in terms of Section 75 of Customs Act, 1962 which falls under Chapter X of the Act. e) Section 129A of the Act deals with appeals to the Tribunal. The relevant portion of the said Section is a....