9911796707
TMI Blog2006 (3) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... 91-Cus. both dated 22-10-1991. And on subsequent Notification inasmuch as, they have made DTA sales during the period 2001-2002 and 2002-2003 without having any net foreign exchange in their account; that they did not obtain permission from STP to clear the goods for DTA; that they did not earn net foreign exchange as they did not export any goods in the first year of commercial production; that the assessee did not pay any duty on the goods cleared for DTA sales. 2. The learned Counsel submits that the Licensing period has not been expired and hence, the demands are not sustainable; that the capital goods are still under Customs bond; that the duty for DTA sales in respect of software is nil and hence, raising demands on capital good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad entered the territorial waters. For goods in a warehouse, the customs barrier would be crossed when goods are sought to be taken out of the customs and brought to the mass of goods in the country. 6. UOI v. Apar Private Limited - 1999 (112) E.L.T. 3 (S.C.) The crucial date for rate of duty applicable in the case of goods removed from a bonded warehouse, the date of actual removal of the goods from the warehouse would be 'relevant date'. 7. Pashupati Fabrics Limited v. CCE - 2005 (184) E.L.T. 41 (T-Del.) 100% EOU - in case of shortfall in export performance, duty is to be paid by EOU only in the event of de-bonding of EOU. When the assessee continues to be an EOU, the demand of duty would be premature. Further, in case of capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g period has not yet expired, but the authorities cannot confirm demands. They can only issue show cause notice. 4. On a careful consideration, we notice from the records that the Licensing period has not yet expired. Furthermore, the capital goods are still under bond and in view of the citations on this issue, the confirmation of demand is pre-mature. Hence, they are entitled to seek full wavier of pre-deposit of the amount. As the demands are not sustainable and they are pre-mature, we set aside the impugned order and remand the case to the Commissioner with a direction that he is free to proceed against the appellants subject to the clarification in Circular No. 122/95-Cus. dated 28-11-1995 wherein it has been clarified that in ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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