ORDER
K Sreedharan (J)
1. This appeal is directed against the Order-in-Original No NEPZ/Customs/03/60/90/Pt.II dated 29.5.2000. As per that order, the Commissioner confirmed the demand of Rs 2,93,68,904/- claimed in the Show Cause Notice.
2. The appellant applied to the Development Commissioner of Noida Export Processing Zone for promotion to set up a unit to manufacture computer software for the overseas market. The appellants were authorised by the Ministry of Commerce by letter dated 16.10.1987 to set up a unit for the manufacture of computer consultancy and computer software development for export subject to certain conditions. On the ground that the export obligations were not complied with, the Customs authorities ordered payment of duty amounting to Rs 2,93,68,904/-. The goods valued at Rs 2,08,75,877/- imported up to December 1991 were also ordered to be confiscated with liberty to redeem it on payment of fine of Rs 20.00 lakhs. That order was challenged before this Tribunal in appeal C/357/95 B2. While disposing of that appeal, by final order No. C/1997/92B dated 29.9.1995 this Tribunal set aside the order and remitted the matter for fresh consideration. Operative portion of the order of remand reads as follows:
“Since exemption is applicable in terms of notification 133/94 and in view of the contention of the party that net foreign exchange earned by them by rendering such consultancy service constituted export earnings as permitted by the Central Govt., we are of the view that concerned adjudicating authority has to look in to details of contract to ascertain the extent of earnings by way of consultancy services and whether they can be correlated with the goods imported and installed at NEPZ and subject to fulfilment of terms and conditions, the benefit of exemption interms of Notification no. 133/94 may be extended accordingly by passing an appropriate order after providing an opportunity to the appellants. Thus, the appeal is disposed of in the above terms.”
3. Aggrieved by that order, the Revenue filed Civil Appeal No 15/1997. That appeal was dismissed by the Apex Court on 24.2.1997. Thereafter the matter was taken up by the jurisdictional Commissioner and he passed the order impugned in this appeal. While passing that order, the Commissioner took the view that the foreign exchange earned by the appellant was not on account sale of “goods” produced utilising 2200 computer system. This finding is under challenge.
4. The short question that arises for consideration is whether the foreign exchange earned by the appellant was out of the “goods” got prepared utilising 2200 computer system. To establish the co relationship, various contracts have been produced by the appellant to show that the goods covered by those contracts were capable of manufacture from 2200 computer system, and that system only. An affidavit has also been filed by the Vice President of the appellant detailing the co relationship with the 220 computer system imported. On going through those contracts and the affidavit filed on behalf of the appellant, we feel that there is co relationship between the “goods” exported having been manufactured from 2200 computer system. Thus, we see that the appellants are having an arguable case against the impugned order. Consequently, we waive pre deposit as contemplated by Section 35F of the Act. The respondents are directed not to initiate any coercive steps to recover the amount covered by the impugned order until further orders.
5. Since the amount involved in the appeal is substantial, we think that an early hearing of the appeal is necessary to safeguard the interest of the revenue. Accordingly, we post the appeal for hearing on 2.7.2001.