ORDER
S.L. Peeran, Member (J)
1. This appeal arises from OIO No. 5/03 dated 8-4-2003 passed by the Commissioner of Customs, Visakhapatnam, confirming demands and imposing penalty of Rs. 1,000/- under Section 114 of the Customs Act, besides confirming interest @ 24% on the ground that the appellants have failed to fulfil the export obligation in terms of the bond executed by them and the Customs Notification No. 79/95-Cus., dated 31-3-1995 amended from time to time. The Commissioner has decided the matter ex parte as the appellants did not appear and were praying for adjournment in the matter on the ground that the matter is ceased before the BIFR and it may take some time for the BIFR to finalise the issue.
2. It is the contention of the learned Counsel before us that on 26-12-2003, BIFR has passed an Order No. 327/99 giving directions to several authorities and laying down the procedure for recovery of the amounts. They have also appointed IDBI as Monitoring Agency. It is his submission that in pg. 16 of the order, they have given a direction to the DGFT to consider on merits the request of the Company to allow two years time to reconcile the exports made by the appellants against duty free imports for which log-in could not be completed. In page 17, a direction has been given to the Customs Authorities to allow for extension of Bonds for materials imported in the past. It was also directed that the Customs Authorities to also charge the new rates of import duty on the materials and to waive interest payable on such bonded materials. The learned Counsel submits that their application is under consideration before DGFT. It is his submission that in the light of this BIFR’s order, the impugned order is not sustainable and the matter has to go back to the Commissioner of Customs for de novo consideration to decide the matter in the light of the BIFR’s order.
3. The learned JCDR submitted that the Tribunal can confirm the demands as admittedly the appellants have not fulfilled the Export Obligation. In counter, the learned Counsel submits that there is a possibility of the Export Obligation being fulfilled on DGFT considering the application and furthermore, the demands are required to be worked out as directed by the BIFR. Therefore, the Tribunal cannot confirm the demands and uphold the Commissioner’s order.
4. On a careful consideration, we find force in the learned Counsel’s submission. In the first instance, the Commissioner has not heard the appellants and the order is clearly violative of Principles of Natural Justice. Be that as it may, we find that after the Commissioner’s order, the BIFR has passed their order on 26-12-2003 in Order No. 327/1999. The IDBI has been appointed as the Monitoring Agency for recovery of the amounts. There is a direction to the DGFT to consider on merits the appellants’ request for extension of Export Obligation period. Further, there is a direction to the Customs Authorities to allow for extension of Bonds for materials imported in the past and the Customs Authorities to also charge the new rates of import duty on the materials and to waive interest payable on such bonded materials. In view of these directions, the matter has to go back to the original authority i.e. the Commissioner of Customs for de novo consideration. It is submitted by the learned Counsel that the Commissioner has to wait for the orders of the DGFT in terms of the BIFR orders before adjudicating the matter. We agree with the learned Counsel that the Commissioner has to wait for the BIFR’s orders in the matter and thereafter adjudicate the matter in terms of the BIFR order. The impugned order is set aside and the matter remanded for de novo consideration to the Commissioner. Customs in the light of the observations made above.