Full Judgment
2. The learned SDR has contended that the permission was already with the Department for initiating the recovery proceedings against the respondents. He has referred to a letter dated 13-2-2001 vide which the permission was allegedly granted to the Department. Therefore, the impugned order, according to the learned SDR, deserves to be rectified.
On the other hand, the learned Counsel has contended that the letter dated 13-2-2001, referred to by the learned SDR, does not contain any permission of the Development Commissioner. This letter was sent by the Asstt. Development Commissioner for taking necessary action, if deemed fit. The learned Counsel has referred to the latest order dated 10th December, 2002 of the Development Commissioner vide which he has taken the view that there had been no breach of the export obligations by the respondents.
3. We have heard both sides and gone through the record. The bare perusal of the impugned final order shows that the Tribunal after relying upon the judgment rendered in the case of Vishal Footwear Ltd. v. CC, New Delhi, 1999 (114) E.L.T. 60 (T) and the Government's Circular No. 21/95-Cus., dated 10-3-1995, set aside the order-in-original for want of proper sanction from the Development Commissioner regarding the breach of the export obligations by the respondents (who were appellants in the appeal before the Tribunal).
4. The letter dated 13-2-2001, referred to by the learned SDR, was issued only by the Asstt. Development Commissioner to the Commissioner after referring to the export of goods made by the respondents/appellants. This was not a letter issued by the Development Commissioner issued in terms of above referred Circular of the Government dated 10-3-1995 authorising the Commissioner to issue Show Cause Notice, for raising duty demand on account of any breach of export obligations to the respondents/appellants. The Tribunal in the impugned final order had held that Commissioner was not legally competent to proceed against the respondents/appellants for want of proper sanction of the Development Commissioner. Rather the copy of order dated 10th December, 2002 passed after the passing of the impugned final order by the Tribunal and produced by the counsel, shows that on account of breach in the export obligations for having not maintained the minimum value addition/NFEP of 35.60%, the respondents/appellants were issued show cause notice, on the review of the performance made by them. After getting their reply, the Development Commissioner had dropped the proceedings against them through this order by holding that there was no short fall in NFEP and there was no sectoral norms and that the unit had been foreign exchange earner during the period. In the face of this order, we doubt if the Department will be legally competent to reinitiate the duty recovery proceedings against the respondents/appellants.
5. In view of the above discussion, we do not find any mistake of fact or law appearing on the face of the impugned final order of the Tribunal so as to call for any rectification. Therefore, the ROM application filed by the Revenue is ordered to be dismissed being without any merit.