JUDGMENT
V.K. Agarwal.
1. This is an application filed by M/s. Elque Polyesters Ltd. for waiver of predeposit of duty amounting to Rs.7,20,00,000(rupees seven crore and twenty lakh) on account of non-fulfilment of export obligation to General Currency Area(GCA).
2. Shri N.C.Roychowdhury, ld.sr.adv. submitted that they started production in their factory from January 1997 and as the export to GCA was found difficult on account of change in the foreign exchange rates and other market situations, they had exported the goods to Rupee Payment Area(RPA). He further mentioned that as they had become sick the factory was almost closed and they could not submit the necessary data of export before the adjudicating authority; that after the adjudication they have looked into their records and found that during the financial year 1996-97 and 1997-98 they had used the imported raw material worth Rs.13.72 crores against which they had exported goods worth Rs.15.40 crores to GCA; that this fact has also been certified by the Development Commissioner, Falta Export Processing Zone (FEPZ). He finally submitted that they are now trying to recover and exporting the goods to GCA which is evident from the fact that in the first four months of the current financial year they have exported goods worth Rs.17.44 crores.
3. Opposing the contentions, Shri Mondal, ld.DR submitted that these figures of exports to GCA were not placed by them before the Commissioner, who adjudicated the matter and thee is no way to know whether these figures are correct or not. At this stage the ld.sr.counsel mentioned that the figures have been correctly taken from their records.
4. We have considered the submissions of both the sides. We find that the adjudicating authority has confirmed the demand on the ground that they had not complied with the requirement of the approval given to them. Now the applicants have submitted a certificate from the Development Commissioner, FEPZ which shows that they had exported to GCA more than the amount of the raw material used by them during the financial years 1996-97 and 1997-98. Taking into consideration the certificate given by the Development Commissioner and the fact that they have been declared sick unit by BIFR we stay the recovery of the entire amount of duty and remand the matter to the Commissioner for re-adjudication after verifying the data of export to GCA by them. The applicants are directed to produce all the data within one month to the adjudicating authority for his verification. The appeal is thus allowed by way of remand.
Dictated in the court.