- (1.) The Assessee-Respondent herein is a 100 percent Export Oriented Undertaking engaged in the process of freezing and export of marine products as per the permission accorded by the Department of Industrial Development. The Respondent herein imported goods valued at Rs. 37,10,164/- without payment of customs duty by seeking exemption under the Notification No. 13/81, dated 9-2-1981. It had also obtained indigenous goods without payment of Central Excise Duty as per Notification No. 123/81, dated 2-6-1981. An investigation was carried out and it revealed that the Respondent herein in March 1994, and during 1994-1996 cleared goods with total value of Rs. 43,47,97,371/- to the DTA and the total duty payable @ 10 percent was Rs. 4,34,79,737/-. Accordingly, show cause notice dated 12-12-1997 was issued for the above mentioned violations to the Respondent herein and the demand was confirmed by the Commissioner. Aggrieved, the Respondent herein filed appeals before the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT'). The Tribunal vide order dated 5-9-2003 [: 2003 (158) E.L.T. 741 (Tri.-Bang.)] has allowed the appeal filed by the Respondent herein on the ground that penalty and confiscation as levied and ordered by the Commissioner under Rule 173Q cannot be upheld since Chapter V-A of the Central Excise Rules, 1944 apply to removal from an E.O.U. unit and hence the same is set aside. It is further observed that the goods manufactured and removed from the E.O.U. have been admittedly exported out of India and therefore, there cannot be any duty leviable under the Customs Act and/or Excise Act as arrived by the learned Commissioner. This order of the CESTAT is under appeal. From the aforesaid, it cannot be denied that the Respondent, which is an E.O.U., had fulfilled its legal obligation of exporting the manufactured goods as per Notification (General Exemption No. 127). We have gone through the said notification. It lays down three conditions and on fulfillment thereof, an E.O.U. becomes entitled to the exemption. These are as under: "(1) the importer has been granted necessary licence for the import of the goods for the said purpose; (2) the import carries out the manufacturing operation in the customs bond and subject to such other conditions, as may be specified by the Assistant Collector of Customs in this behalf; (3) the importer exports out of India hundred percent or such other percentage, as may be fixed by the said Board, of Articles manufactured wholly or partly from the goods for the period stipulated by the Board or such extended period as may be specified by the said Board;"
(2.) As mentioned above, it could not be denied by the Appellant that the Respondent-undertaking had exported out of India 100 percent of articles manufactured by it. The only argument which is sought to be raised is that the unit at Bhimli (Visakhapatnam) which was given the status of E.O.U. has not fulfilled this obligation and in fact, goods were sent to Chennai unit and it is from Chennai unit that the export was effected. We hardly see it to be a ground to deny the exemption. As mentioned above, it is the Respondent, namely, M/s. Alsa Marine & Harvests Ltd.., which is an E.O.U. and it is this undertaking which has fulfilled its obligation under the aforesaid notification. Whether it is done from Bhimli (Visakhapatnam) or Chennai unit, would be totally irrelevant and immaterial. We, thus, do not find any error in the order passed by the CESTAT.
(3.) The appeal is, accordingly, dismissed. Civil Appeal No. 6570 of 2004. This appeal stands disposed of in terms of the aforementioned order passed in the Civil Appeal No. 10203 of 2003.;