TaxTMI 
TaxTMI 
2023 (4) TMI 1070
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....ounting to Rs. 2,26,51,803/- had forgone by availing benefit of notification no. 53/91-Cus dated 03.06.1997 and at the same time excise duty amounting to Rs. 4,01,324/- was not charged as per the provisions of notification no. 1/95-CE dated 04.01.1995 during above mentioned period. 03. It has been the contention of the department that the duty free procurement of capital goods, raw materials, packing materials, etc. under the aforesaid notifications was subject to certain conditions which included that the respondent assessee was required to achieve a value addition of 70% however against the prescribed value addition norms of 70%, the respondent unit achieved an average value addition of just 25% and thus resulting in short fall in the value addition by 45% during the period covering financial years 1994-95 to 1998-99. Being more specific, the respondent assessee was required to fulfill export obligation to the tune of Rs.1540 lacs as per their legal undertaking against which they could only export goods valued at Rs. 647.44 lacs and thus resulting into export short fall of Rs. 892.56 lacs. 3.1 On the basis of the above premises, the department has issued a show cause notice....
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....ng the status of the appeal, had intimated that the OIO No. 5/2009-10 dt.30.9.09 of the Development Commissioner KASEZ has been set aside by the Appellate Committee, Dept. of Commerce, Udyog Bhavan, New Delhi vide order issued from F.No. 12013/2/2010-ADJ/AC dated 28-07-2011. No further appeal was preferred against the said appellate order as intimated by Deputy Development Commissioner KASEZ vide F. No. KASEZ/100%EOU/III/138/93-94 dated 07.02.2013. 10.7 I find it very explicit from the above appellate Order that there was no statutory requirement of achieving any minimum value addition and also considering a period of 1 year and 8 months in calculating NFE is too short. 10.8 In light of the hon'ble CESTAT's order and the Appellate Order in the matter, I find and hold that once there is no statutory requirement of achieving any minimum value addition as per EXIM policy as held by the Appellate Committee, the allegations made in the subject show cause notice that the non achievement of export obligation as well as value addition in respect of the noticee do not hold any merit and get defeated and as such the show cause notice deserves to be dropped. 3.3 T....
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....velopment commissioner, Kandla that they are unable to achieve such a high value addition norms of 70%. The Development Commissioner, Kandla has agreed to their submissions in downgraded value addition norms in the mid-term review of the export performance. 4.3 After hearing both the sides and on perusal of record of the appeal, we find that the only question which need to be answered by us is whether the respondent assessee has violated the condition of notification no. 53/97-Cus dated 03.06.1997 and notification no. 1/95-CE dated 04.01.1995. The notification no. 53/97-Cus dated 03.06.1997 provides exemption to the capital goods imported for the purpose of manufacture of articles for export by 100% exported oriented unit. The condition stipulated under the notification reads as under :- (6) The importer executes a bond in such form and for such sum and with such security or surety as may be prescribed by the Assistant Commissioner of Customs, binding himself to fulfil the export obligations and conditions stipulated in this notification and in or under said Export and Import Policy and to pay on demand an amount equal to the duty leviable on the goods as are not proved....
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....one through fact of the case and the written reply dtd 17/3/2003. They had undertaken export total of 13320 kgs of finished products value at USD 39.96 lakhs in ten years period. During the initial stages the price was USD 240 per Kg. but later on the price fell down USD 91 per Kg. This is due to heavy international market as they were forced to sell at the rock bottom prices. Hence FOB value of export has reduced. In view of the above facts and circumstances, I find no reason to penalize them for the shortfall in the export obligation / export performance, specially in view of the fact that the actual export obligation as per the show cause notice was to the tune of Rs. 1132.24 lakhs Whereas they have actually achieved export of Rs. 1055.24 lakhs which is short to the extent of 6.76% of stipulated export obligation. This is reasonable taking into account that the price available for their final products has been reduced by more than 62 % due to the competition in the International Market, mainly by China which was a factor beyond their control. In any case the cumulative NFEP has been maintained above the normal minimum prescribed NFEP of 20% since inception till 30.09.20....
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....of relevant exim policy by any Export Oriented Unit, the most appropriate authority to decide the violation of the policy are the officers of the Ministry of Commerce and Industry and as can be seen from the above orders, they have categorically found that there has been no violation on the part of the respondent assessee of any provisions of the import-export policy and it has very categorically been provided that no statutory requirement of achieving any minimum value addition and therefore as a corollary no violation of any provisions of the exim policy. 4.9 In our view, for demanding the forgone customs duty under the notification no. 53/97-Cus dated 03.06.1997 there need to be violation of the conditions of the import-export policy of the relevant period. Since the relevant authorities implementing the import export policy provisions have categorically found that there has not been any violation of the conditions therefore, we hold that no conditions of the exemption notification no. 53/97-Cus dated 03.06.1997 and notification no. 1/95-CE dated 04.01.1995 has been violated by the respondent assessee. We also take note of the fact that relevant period taken for judging expor....