2009 (9) TMI 599 - AT - Customs

EOU - failed to fulfill export obligation in the period allowed - directed the appellant to pay all the duties of customs and central excise - EOU was not entitled to depreciation for computing duty to be recovered on capital goods imported; it was liable pay the duty foregone at the time of procurement - Commissioner has passed the order without meeting the challenge set up by the EOU to the proposals Held that - There has to be judicial justification of such a view. Unless the decision is squarely covered by a binding ratio, an order cannot be validly passed ignoring the arguments of the noticee. We observe that the Commissioner passed a non-speaking order without considering the arguments of the assesses - order cannot therefore be sustained.

Issues:
1. Recovery of duty of customs foregone on import of capital goods and raw materials by an EOU.
2. Validity of duty demand and interest confirmed by the Commissioner.
3. Entitlement to depreciation for computing duty on imported capital goods.
4. Submission of quarterly returns for raw materials consumption by the EOU.
5. Judicial justification and consideration of arguments in passing orders.

Issue 1: Recovery of duty of customs foregone on import of capital goods and raw materials by an EOU

The appellant, an EOU, faced a demand of duty of Rs. 1,04,22,403 along with interest due to failure in fulfilling export obligations. The EOU contested the demand citing ongoing correspondence with the Development Commissioner regarding de-bonding. Arguments included non-clearance of capital goods from licensed premises and the impact of recession on export obligations. The EOU also highlighted relevant case law and Circulars issued by the CBEC to support their case. The Tribunal found the Commissioner's order lacking judicial justification and remanded the issue for fresh adjudication, emphasizing the need to consider the appellant's arguments.

Issue 2: Validity of duty demand and interest confirmed by the Commissioner

The Commissioner confirmed the duty demand and interest based on the EOU's failure to fulfill export obligations and non-submission of quarterly returns for raw materials consumption. The Commissioner held that the EOU was not entitled to depreciation for computing duty on imported capital goods and that the duty foregone at the time of procurement was payable. However, the Tribunal found the Commissioner's order to be non-speaking and lacking consideration of the appellant's arguments. Consequently, the Tribunal vacated the order and remanded the issue for fresh adjudication, ensuring the appellant's right to present its case.

Issue 3: Entitlement to depreciation for computing duty on imported capital goods

The EOU argued for depreciation to be considered until the date of payment of duty, not till the date of de-bonding, citing Circulars providing guidelines for duty calculation on depreciated values of imported capital goods. The EOU contended that unfulfilled export obligations should not impact duty liability at the time of de-bonding. The Tribunal noted the EOU's arguments but found the Commissioner's order lacking judicial justification and consideration of these points, leading to the decision to remand the issue for fresh adjudication.

Issue 4: Submission of quarterly returns for raw materials consumption by the EOU

The Commissioner noted the EOU's failure to submit quarterly returns showing raw materials consumption to the Development Commissioner, leading to the confirmation of duty demand on raw materials. The EOU contested this, stating that the raw materials were within permissible limits for DTA clearances. The Tribunal found the Commissioner's order to be non-speaking and lacking consideration of the EOU's arguments, prompting a remand of the issue for fresh adjudication to ensure a fair hearing for the appellant.

Issue 5: Judicial justification and consideration of arguments in passing orders

The Tribunal emphasized the need for judicial justification in confirming duty demands and interest, highlighting the importance of considering the arguments presented by the appellant. The Tribunal found the Commissioner's order to be insufficient in this regard, leading to the decision to vacate the order and remand the entire issue for fresh adjudication, ensuring that the appellant has the opportunity to present its case effectively.

This detailed analysis of the judgment addresses the recovery of duty, validity of duty demand, entitlement to depreciation, submission of quarterly returns, and the importance of judicial justification and consideration of arguments in passing orders.

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