Raju ORDER
Ramesh Nair, Member (J)
1. These two appeals have been filed by appellant M/s. Kaybee Tex Spin Ltd., on common issue against Order-in-Appeal dated 23.03.2021 passed by the Commissioner (Appeals), Customs, Ahmedabad.
1.1. The facts of the case are that appellant a 100% EOU, during the period September 2003 to November 2003 was engaged in manufacture of Texturized Yarn, Twisted Yarn, Knitted Fabrics etc. During scrutiny of ER-2 returns and Central Excise Invoices of appellant for the months of September-2003 to November 2003 department noticed that appellant had cleared finished goods viz. 29284.05 kgs of sized yarn valued at Rs. 1701696/- and 45249.41 kgs of polyester knitted fabrics valued at Rs. 26,99,227/- in DTA as per para 6.8 (f) of Exim policy 2002-2007 allegedly without having any permission from the Development Commissioner, and thereby allegedly failed to follow procedure laid down under the Exim policy and failed to fulfill the condition of exemption Notification no. 52/2003-Cus : MANU/CUST/0010/2003 dated 31.03.2003. Show Cause Notices on 01.06.2004 and 25.06.2004 were issued to Appellant proposing recovery of customs duty of Rs. 10,09,276/- and 15,96,827/- on raw materials imported duty free in term of Notification No. 52/2003-Cus : MANU/CUST/0010/2003 and also proposed confiscation of goods and imposition of penalty. The demand was confirmed by the adjudicating authority. Aggrieved, the appellant filed appeal before Commissioner (Appeals), who confirmed the demand on the ground that this is not a case of demand on raw material but a case of denial of exemption notification under which raw material was allowed to be imported duty free. The Case law cited by the appellant find no applicability, including the case of Suresh Synthetics MANU/SC/8981/2007 : 2007(216) ELT 662(S.C.). Therefore, the appellant filed the present appeals.
2. Shri Rahul Gajera, Learned Counsel appearing on behalf of the appellant submits that Ld. Commissioner (Appeals) erred in not appreciating that inordinate delay in adjudication caused serious prejudice the Appellant's case and hence impugned order is not sustainable on this ground alone. In view of the Judgment of Hon'ble Supreme Court in the case of Commissioner of C. Ex. & Customs Vs. Suresh Synthetics - MANU/SC/8981/2007 : 2007(216) E.LT. 662(S.C.) demand of Customs duty in respect of clearances of finished goods by 100% EOU in DTA is not sustainable. The matter is squarely covered by the decision in which it has been held that in case of finished goods manufactured and cleared in DTA by 100% EOU, only excise duty is applicable and; d........