M/S. Estc Pvt.Ltd vs Commissioner Of Customs, Kolkata

Stay Petition No.SP-48/12 & Appeal No.Cus.Ap.9/12 (Arising out of Order-in-Appeal No.KOL/CUS/CKP/320/2011 dated 17.10.2011 passed by the Commissioner(Appeals) of Customs, Kolkata.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)

1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. ESTC Pvt.Ltd. Applicant (s)/Appellant (s) Vs.

Commissioner of Customs, Kolkata Respondent (s)

Appearance:

Shri S.Banerjee, Advocate for the Appellant (s) Shri S.P.Pal, Appraiser(A.R.) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing:- 12.03.2015 Date of Pronouncement :- 12.03.2015

ORDER NO.FO/A/75137/2015

Per Dr. D.M. Misra.

1. This is an Application seeking wavier of pre-deposit of duty of Rs.1.79 Crores.

2. At the outset the ld.Advocate for the applicant submits that in the year 1993 the applicant had imported goods under Advance License dated 16.11.1992 and the corresponding DEEC Book No.059238 dated 16.11.1992. The duty foregone in respect of imports allowed to the appellant against the said advance license was Rs.1,79,33,211/-. The ld.Advocate further submits that they have fulfilled the export obligation by effecting export of the manufactured goods from the said imports in 1993 itself. However, despite their repeated applications to the Director General of Foreign Trade, the export obligation discharge certificate(EODC) had not been issued to them so far. He submits that recently when they approached the DGFT, they were assured to be issued the necessary EODC. He submits this is the only issue involved in the present case and request that merely for the non-production of EODC from DGFT, they should not be asked to pay the duty as confirmed in the impugned orders.

3. The ld.A.R. for the revenue submits that the demand has been confirmed against them only on the ground that they could not produce EODC certificate. He has no objection in remanding the case.

4. After hearing both sides for some time we find that the appeal itself would be disposed of. Accordingly, after waiving the requirement of the pre-deposit we take up the appeal itself for disposal with the consent of both sides

5. We find that the demand has been confirmed against the appellant solely on the ground that the appellant failed to proudce the EODC before the adjudicating authority, in support of their claim that the goods imported against the advance license/DEEC book had been used in the manufacture of goods which and were exported in the year 1993. The ld. Advocate during the course of hearing had placed recent reminder letter dated 19.11.2014 addressed to the Joint Directed General of Foreign Trade, Kolkata for issuance of EODC against the imports made. Both sides agree that these certificates ought to be verified before accepting the claim of the appellant that the goods manufacture from the imported goods were later exported on fulfilment of conditions of these licenses. In these circumstances, we do not find it appropriate to keep the appeal pending before this forum as after issuance of EODC certificate, the same needs to be scrutinized by the ld. adjudicating authority. In the result, we set aside the impugned order and remand the case to the adjudicating authority to examine the EODC certificate as and when produced by the appellant. The appellant is directed to pursue the office of the DGFT and obtain the certificate as early as possible. Appeal allowed by way of remand. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

3 Appeal No. Cus.Ap.9/12