ORDER
Jeet Ram Kait, Member (T)
1. This appeal is directed against the order-in-original No. 12/97 (Commissioner), dated 22-12-97 by which the Commissioner has ordered confiscation of Schlofrost Auto Cone Winder imported under Bill of Entry No. 45, dated 9-11-90 with CIF value of Rs. 48,37,276/- on the ground of non fulfillment of the export obligation as contemplated in Notification No. 71/87, dated 1-3-87 as amended, under Section 111(o) of the Customs Act, 1962. However, he allowed the importer to redeem the same on payment of redemption fine of Rs. 25 lakhs in lieu of the confiscation, and imposed penalty of Rs. 10 lakhs on the importer under Section 112 (a) of the Act ibid.
2. Appearing on behalf of the appellants Shri N. Venkatraman, Advocate and Shri Muthu Venkatraman, Advocate submitted that the findings recorded by ld. Commissioner are factually incorrect inasmuch as the export obligation against the import of 1 No. Schlofrost Auto Cone Winder imported under concessional rate of Customs duty under the Notification No. 71/87-Cus., dated 1-3-87 as amended from time to time, they have submitted the certificate issued by Shri N.S. Rawat, Deputy Director of the Office of the Textile Commissioner, Mumbai in a letter addressed to Shri V. Murugesan Foreign Trade Development Officer, Madurai. Moreover, Shri V. Murugesan, Foreign Trade Development Officer, vide his letter No. Misc/BOND/44/90-91/OGL/3461, dated 27-3-1997 enclosed a copy as a proof of the completion of the export obligation, issued by the Deputy Director of the Office of the Textile Commissioner, Mumbai informing the DRI (Regional Cell), Trichy that the firm had completed the export obligation over and above the average export performance of the preceding three years and also certified that the firm had fulfilled the export obligation against the import of the said machinery.
3. Appearing on behalf of the Revenue, ld. DR Shri C. Mani invited out attention to the impugned order that there is a difference in the figures and a short fall of Rs. 1,35,295/- in the average export performance for the years 90-91 and 94-95. He further submits from the average export performance the difference comes to Rs. 1,16,54,041/-. The above figure has been arrived at by excluding the export made through merchant exporter.
4. In counter, ld. Counsel invited out attention to the report of the Textile Committee, dated 15th October, 1996 in which the value of the machine has been mentioned as Rs. 48,37,276/- and 5 times of the value of export obligation within the five years would come to Rs. 2,41,86,380/-. He further submitted that the average export during the preceding 3 years from the date of import i.e. 87-88, 88-89, and 89-90 as per the Chartered Accountant’s certificate was only to the extent of Rs. 75,66,659/- whereas they have exported Cotton yarn of the value of Rs. 4,73,75,502/- including the quantity of export through merchant exporter to the extent of Rs. 42,41,565/-. Therefore, as against the imported machinery value of Rs. 2,41,86,380/- they have exported cotton yarn worth Rs. 4,73,75,502/-. Even if the value of Rs. 42,41,565/- of the merchant exporter is excluded then also they have exported cotton yarn of the value of more than 4 crores as against 2.41 crores which they were required to export. He further submits that not only the Textile Commissioner’s office but even the DGFT has confirmed that they have completed the export obligation over and above the average of the preceding 3 years and have certified that the firm had not only fulfilled the export obligation against the import of the said machinery but have actually exceeded the export obligation.
5. We have considered the rival submissions and are of the considered view that they have fulfilled the export obligation as could be seen from the letter dated 15th October, 1996 of the Textile Commissioner as well as from the letter dated 27-3-97 of the Foreign Trade Development officer, Trichy written to the DRI (Regional Unit), Trichy and we are satisfied that they have executed the export obligation both in respect of average as well as total export clearances. We, therefore, set aside the impugned order and allow the appeal with consequential relief, if any, as per law.