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TMI Blog2009 (7) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... A.K. Srivastava, Member (T) and Ashok Jindal, Member (J) REPRESENTED BY : Shri Manoj S. Sanklecha, Advocate, for the Appellant. Shri R.K. Mahajan, Jt. CDR, for the Respondent. [Order per : Ashok Jindal, Member (J)]. - This stay application is arising out of the Order-in-Original No. 7/CEX/2008 dated 3-11-2008 demanding Customs duty of Rs. 1,29,75,002/- and a penalty of Rs. 5.00 lakhs. 2. The applicant is a 100% EOU manufacturing latex examination hand gloves. The applicant was granted permission to set up a 100% EOU for the purpose of manufacture and export of the aforesaid goods with a condition that the entire production of the said goods manufactured by the applicant will be exported for a period of 10 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital goods are still installed in the factory and the action for payment of duty would arise only when the manufacturer removes the said capital goods from the factory. (d) No penalty can be imposed upon the applicant as there was no guilty mind on the part of the appellant. (e) If the duty is demanded that is to be demanded only on the depreciated value of the said capital goods. 5. The ld. Counsel placed some judgments and mainly relied on the case of - (a) Bhagwati International v. CC, New Delhi [2006 (206) E.L.T. 700 (Tri.-Del.)], wherein it was observed that pre-deposit can be demanded when the goods are not under the control of the Customs authorities as per Section 129E of the Customs Act. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment revenue has to be protected, when there is just no chance of unit reviving, and its machinery becoming obsolete by their negligence. 9. After hearing both the parties, we find that the capital goods, on which the duty is demanded, are under the control of the Department as they have been confiscated by the impugned order. As per Section 129E of the Customs Act, 1962, which is reproduced as under :- "Where in any appeal under this Chapter, the decision or order appealed against relates to any duly and interest demanded in respect of goods, which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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