TaxTMI 
TaxTMI 
TaxTMI 
2024 (5) TMI 520
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....rice at the end of five year block validity period, last time w.e.f. 01.09.2011 vide letter dated 12.07.2011 of the Development Commissioner,Falta, SEZ, Kolkata. The manufactured item of the Unit was HDPE bags. 2.3 Since the year 2010, the appellant felt a downward trend in the export market owing largely to world-wide campaign against use of plastic/polythene items over environmental issues as the appellant failed to achieve positive Net Foreign Exchange Earning (NFE) during the year 2011-12 and 2012-13. However, in the year, 2013-14 and 2014-15, the appellant made good the deficiencies for the last two years and achieved a net positive NFE cumulatively for the period September, 2011 to March, 2015. 2.4 Thereafter, the appellant decided to exit from EOU Scheme and applied to the Development Commissioner for the said purpose. After being satisfied that the appellant has achieved positive NFE in the running block years. The Development Commissioner granted "Inprinciple De-bonding Order" subject to production of "No Dues Certificate" from the Central Excise authorities, which was granted in November, 2015. Accordingly, the Unit was finally de-bonded in December, 2015. 2.5 Thereaft....
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....n fulfilment of NFE as the said job entrusted to the jurisdictional Development Commissioner, who found no discrepancy in this regard and it has been specifically observed in the final de-bonding order dated 07.12.2015 that the appellant has achieved positive NFE cumulatively. Therefore, the respondent has acted without the authority of law by raising the ground of contravention of Para 6.8(a) of FTP read with Para I (h) of Appendix-14-I-H. It is submitted that it is settled law that the action for FTP violations/NFE issue is to be initiated first by the Development Commissioner as held by this Tribunal in the following cases : (i) Commissioner of Customs (Port), Kolkata Vs. Transworld Business Corporation : 2019 (370) ELT 612 (T) ; (ii) Universal Biofuels Private Limited Vs. Commissioner of Customs, Vijayawada : 2019 (369) ELT 1111 (T) ; (iii) Shree Bankey Behari Lal Board Mills Vs. Commissioner of Customs, Ghaziabad : 2018-TIOL-981-CESTAT-All. ; (iv) Mantra Broadband Private Limited Vs. Commissioner of Customs, Bangalore : 2011 (272) ELT 243 (T) . 3.1 He further submits that the ld.Commissioner (Appeals) travelled beyond the scope of show-cause notice and furthermore....
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.... should confirm the demand. On this account, that would avoid the situation wherein the allegation in the notice might be found unsustainable in terms of Exim Policy/Customs law and may have to be dropped by the Department itself. We have not been made available any communication from the Development Commissioner raising any demand to that effect by the Appellant- Revenue. Under the circumstances, we uphold the impugned order and dismiss the appeal filed by the Revenue." 7. Further, similar view has been taken by this Tribunal in the case of Universal Biofuels Private Limited (supra), wherein this Tribunal has held as under : "8. We also find strong force in the argument of Ld. Counsel for the appellant that the final decision regarding any licence issued by the DGFT or Development Commissioner rests with such authority. Once the final exit has been given by the Development Commissioner, Customs has no authority to re-open the matter." 8. We further take note of the fact that this Tribunal in the case of M/s Shree Bankey Behari Lal Board Mills (supra), has also examined this issue and observed as under : "5. Having considered the rival contentions, I find that prima facie t....
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....case a 100% EOU ceases production prematurely or fails to commence production or export within the stipulated period. In case the Development Commissioner initiates action against the unit for non-fulfilment of export obligation etc. simultaneously the customs authorities should issue show cause notice for failure to comply which conditions of Notification 13/81-Cus., dated 9-2-1981. The demand of duty should be confirmed only after a definite conclusion has been arrived at by the Development Commissioner." In Vishal Footwear Ltd. case (supra), the Tribunal held that the Circular made it clear that even in the event of failure to continue to make exports, the Development Commissioner's recommendation was required before duty demand was confirmed by the Customs authorities. In that case, there was no definite conclusion arrived at by the concerned authorities namely, a Development Commissioner. On the other hand, the Deputy Commissioner had extended the period of validity for a further period up to 31-3-1991 and the importers had requested for further extension. We find that the facts of the subject case are comparable with Vishal Footwear Ltd. case (supra). Further the mandatory ....