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TMI Blog2010 (12) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, there cannot be any duty liability. As Regards the shortage of the capital goods - Allowance of depreciation - Regards duty liability of the appellant on capital goods, the duty liability is not be disputed by the assessee, as they were admittedly found outside the EOU premises - The only question remains to be addressed is regarding the allowance of depreciation to the appellant - As per Final Order in the appellant’s own case, the depreciation has to be worked out till the point of payment of duty - This order needs to be followed in by the Adjudicating Authority and hence, in order to re-quantify the amounts as per our direction in the appellant’s own case,set aside the demands confirmed by the Adjudicating Authority on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal to the Tribunal in appeal No. 326/2003 which was disposed of by the Tribunal by Final Order No. 700/2005, dated 6-5-2005 (as reported at 2005 (190) E.L.T. 284). By the said order, in paragraph 7, this bench directed the Adjudicating Authority in the following terms. Applying the ratio of the Tribunal s judgment cited by the learned Counsel, RF and penalty are set aside and the matter is remanded to the original authority to quantify the duty after granting them depreciation up to the point of payment of duty as held in the judgment cited by the learned Counsel. The appeal is allowed in the above terms . 5. The current impugned order is an independent proceeding for the missing goods and alleged clearances made to D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial year); (d) In terms of Section 112 of the Customs Act, 1962, I impose a penalty of Rs. 5,00,000/- (Rupees Five Lakh only) on SAFEL; (e) In terms of Rule 25 of the Central Excise Rules, 2002, I impose a penalty of Rs. 2,00,000/- (Rupees two lakhs only) on SAFEL; (f) In terms of Rule 26 of the Central Excise Rules, 2002/Rule 209-A of the erstwhile Central Excise Rules, 1944 and Section 112 of the Customs Act, 1962, I impose a penalty of Rs. 10,000/- (Rupees ten thousand only) and Rs. 10,000/- (Rupees ten thousand only) on Shri P. Suresh, Manager of SAFEL and Shri M. Siva Prasad, Authorised Signatory of SAFEL respectively. 6. The learned counsel would submit that as regards the duty on the shrimps cleared to DTA witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 7. The learned JDR would submit that the Paddle Aerators were not available on the date of verification and hence, depreciation given by the learned Commissioner is itself wrong on which point they are in appeal. As regards the Diesel Generator Set, it is his submission that they were not found in the EOU and action for demanding of duty as per law is correct. 8. On a careful consideration of the submissions made by both sides, we find that (i) as regards the duty liability on the DTA clearances of the shrimps allegedly done by the appellant, it is seen that the relevant period in this appeal is 1994 to 1997. During the relevant period, provisions of Section 3(1) were not amended and the decision of this Tribunal in the case of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts as per our direction in the appellant s own case, we set aside the demands confirmed by the Adjudicating Authority on the Diesel Generator Sets and remand the matter back to him for considering it in accordance with the directions and law. As regards the duty demand on 385 Nos. of Paddle Aerators, we find that the appellant has been taking a plea before the Adjudicating Authority that these Nos. of Paddle Aerators are available in the EOU premises. This plea was taken by the appellant during the personal before Adjudicating Authority. On careful perusal of the impugned order, we find that the Adjudicating Authority has not recorded any findings on the plea taken by the appellant. In the absence of any clear findings, we are unable to go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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