ORDER
V.K. Ashtana, Member (T)
1. Since the issue in all these appeals lies in a short compass, we take up the appeals themselves for decision, by granting waiver of pre-deposit of duty and penalty amounts.
2. In the following eight appeals, the issue concerns is identical and, therefore, they are being considered by this common order.
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Appeal 0/0 No. & Duty Penalty Export
Nos. date demanded Obligation
impugned fulfilled (US $)
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C/177/99 1/99 37,46,634 37,46,634 2,063
8.2.99
C/182/99 3/99 2,51,50,106 2,51,50,106
8.2.99
C/183/99 02/99 1,74,86,316 1,74,86,316 2,875 MT
8.2.99
C/188/99 01/99 8,48,260 8,48,260 485,938
8.2.99
C/189/99 05/99 1,48,63,275 1,48,63,276 615,300(32.64%)
8.2.99
C/218/99 10/99 95,55,580 25,00,000 103,58,534 MT
31.3.99
C/219/99 11/99 26,43,425 6,00,000 173.657 MT
31.3.99 Out of
(US $84,759)
C/220/99 12/99 18,89,383 3,00,000 248.1513 MT
31.3.99 (US $87,365)
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3. Briefly the issue involves import of raw materials and clearance thereof without payment of customs duty for export of the final product as per the export obligation under VABAL Scheme of the Ministry of Commerce. Five VABAL advance licences under the Scheme were issued between the period 6/ 94 and 4/95 and the export obligation therein expired. Since the records of the Customs House did not show that the appellants had met the total export obligation, therefore, duty of customs was demanded vide various show cause notices issued and these were then considered by the learned Commissioner vide orders in original impugned noted above. In each of these cases, the learned Counsel for the appellants submits that they had submitted before the original authority that they had applied to the DGFT, New Delhi for extension of the export obligation period for reasons mentioned therein. This application was still pending with that office. However, the learned original authority for reasons stated in these orders in original impugned had proceeded to confirm he (sic) [the] duty demand and penalty imposed as noted above.
4. The learned Counsel further submits that in reply to their letter for granting extension to the export obligation period the office of the DGFT, New Delhi vide letter dated 12.5.99 (which he produced in the Court) informed them that as per the DC FT’s Public Notice No. 5 dated 6.4.99 there has been liberalised policy of extension of the export obligation for a period of 1-1/2 years which shall expire on 31.3.2001. The learned Counsel submits that in terms of the DGFT’s letter dated 12.5.99 mentioned above, they have since approached in writing to the Deputy DGFT, Cuttack, in terms of this Public Notice for extension of the export obligation period. He, therefore, submits that all these orders in original are primature (sic) [premature] in view of the fact that the aforesaid communication from the DGFT, clearly shows that the policy on export obligation period has been liberalised vide Public Notice No. 5, and hence extension is possible under the law. The learned Counsel submits that if this extension applied for is given in terms of the said Public Notice then no duty of customs would be demandable and penalty imposable, provided they are in a position to fulfill their export obligation by the revised date fixed by the Dy. DGFT, Cuttack. The learned Counsel also submits that the orders in original impugned have not considered the case of export to that extent and, therefore, the quantification of actual export is not factually correct.
5. The learned SDR submits that the orders in original impugned were much after expiry of the export period under the earlier Public Notice and that show cause notices were issued and orders passed and the new Public Notice had not been promulgated. Therefore, there is no error in these orders in original impugned.
6. We have considered the rival submissions and records of the case and find that in view of the fact that the applicants application to the DGFT, New Delhi has since been answered in writing by the DGFT vide his letter dated 12.5.99 directing them to approach the Dy. DGFT, Cuttack in terms of the policy of extension contained in the Public Notice No. 5 noted above, and also the learned Counsel submits that they in fact approached the said Dy. DGFT, Cuttack, therefore, it would not be correct to hold that the export obligation period is over. In fact we find that the matter is still under consideration with the Dy. DGFT, the subordinate authority mentioned above and until a final decision is taken by the said authority with respect to each advance licence, it would be premature to uphold the duty confirmed and penalty imposed by the orders in original impugned. Therefore, we set aside these orders in original impugned and remand the matter to the original authority with a direction that the learned Commissioner shall also take into consideration the export of the appellants and also regarding their application for extension of the export obligation period. The learned Commissioner shall no doubt give them effective hearing before proceeding to pass a speaking order in the de novo proceedings. The appeals are thus allowed by remand.