9911796707
TMI Blog2001 (3) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... . Flistex Magnetics Ltd. are liable for confiscation, chargeable to Customs and Excise duty on redemption and whether penalty is imposable on appellant company as well as on two other appellants, being Directors of the company. 2. Shri J.P. Kaushik, learned Advocate, mentioned that M/s. Flistex Magnetics Ltd. set a unit in Noida Export Processing Zone for manufacture and export of video tapes as per the approval of the Ministry of Commerce dated 27-9-1989; that they imported capital goods and raw materials during 1992-93 to 1994-95 and procured indigenous capital goods during 1991-92 to 1993-94 without payment of duty under Notification No. 339/85-Cus., dated 21-11-1985 and Notification No. 5/86-C.E., dated 20-1-1986; that, however, becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of debonding; that there is an error in the impugned order in demanding full duty without quantifying the duty demand on the basis of the depreciated value of the capital goods. The learned Counsel, further, submitted that it is a well settled law that the show cause notice is to be issued in terms of law in force at the time of issue of the notice; that the notice has been issued to them after the notification No. 339/89-Cus. was rescinded by Notification No. 133/94-Cus., dated 22-6-1994; that in new Notification there is no condition of re-export of the imported goods within one year of importation; that Para 3A of the Notification No. 339/89-Cus. has been replaced by Para 4 of the Notification No. 133/94-Cus. according to which duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Export Processing Zone with the permission of the Development Commissioner; that Notification permits for deponding and clearance of goods on payment of duty and as such no confiscation is warranted and no penalty is imposable on the appellant company and its directors for want of mala fide; that further Shri P.D. Kapoor, Director, was not participating in day to day affairs of the company. 5. Countering the arguments, Shri Prabhat Kumar, learned S.D.R., submitted that the approval to the appellant company by the Ministry of Commerce was accorded in 1989, the show cause notice was issued only in 1997 as they failed to fulfil their obligation and the conditions laid down in the Notifications; that the unit was lying closed for a long time, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri. P.D. Kapoor and S.D. Kapoor are liable to penalty as they are carrying out the business of the appellant company. 6. We have considered the submissions of both the parties. The idea behind the creation of Export Processing Zone by the Government is to boost the export of goods from the country. To achieve this purpose and to make the export free from burden of duty, the Central Government has exempted capital goods and raw materials imported from abroad or procured from indigenous sources by a unit in Noida Export Processing Zone from payment of duty subject to conditions specified in the relevant Notifications. It is also seen from the letter of approval, granted by the Ministry of Commerce, the appellant Company was required to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered dealer does any act specified in various clauses of Rule 209 in respect of excisable goods. As the Appellant company is not one of the specified persons in respect of the impugned excisable goods, the same are not liable for confiscation under the provisions of Rule 209 of the Central Excise Rules. We, accordingly, set aside the confiscation of the same. 8. We remand the matter to the Adjudicating Authority to consider the plea of the Appellants about dutiability of the goods on the depreciated value. The Adjudicating Authority will also consider about the quantum of redemption fine in respect of goods imported by the Appellants. The issue regarding imposition of penalty on all the three appellants is kept open to be considered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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