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TMI Blog2011 (5) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... acko, B.S.V. Murthy, JJ. S/Shri N. Anand & Naveen Kumar, Advocates, for the Appellant. Shri Harish, J., JDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - M/s. Noel Agritech Ltd. (EOU for short) was permitted to establish a 100% EOU and was also issued with customs bonded warehouse licence for producing, warehousing and export of flowers and leaves. As per the permission given to them, they were required to discharge the export obligation by exporting 6 lakhs numbers of flowers and leaves each with a value addition of minimum 74%. During the period from 1995-99, EOU imported capital goods, consumables, spares, raw materials, equipments, etc., totally valued at Rs. 2,62,83,048/- availing exemption from payment of excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the appellants submitted that when the capital goods were imported, appellants had all intentions to produce flowers & leaves and export the same. Unfortunately after importing the capital goods and equipments, the appellants found that the equipment was not suitable and was not able to generate the kind of environment which was required for production. Further, it was also found by them that the plants supplied by the foreign supplier were infected and consequently they were able to export flowers worth only about Rs. 42 lakhs. Further, he also submitted that another difficulty was the fact that Netherlands, the country, to which they wanted to export the flowers increased customs duty on flowers thereby making it uneconomical to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also submits that the show-cause notice itself is without jurisdiction. This is in view of the fact that the show-cause notice has been issued proposing to demand duty under Section 72 of Customs Act, 1962 and under Section 72 duty can be demanded only at the time of clearance of goods from the warehouse or when they have been removed. Admittedly, in this case the goods have not been removed at all. He also relies upon the following decisions in support of his contention that depreciation is admissible. (a) Suvarna Aqua Farm & Exports Ltd. v. CC [2005 (190) E.L.T. 284 (T)]. (b) Nava Bharat Enterprises Ltd. v. CCE [2010 (256) E.L.T. 602 (T)]. (c) Premier Granites Ltd. v. CC&CE [2007 (210) E.L.T. 200 (T)]. (d) CC&CE v. Solitaire Machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of non-fulfilment of export obligation, the plea that unit was de-bonded and therefore the demand was premature was to be rejected and he also submits that according to this decision, in the case of non-fulfilment of export obligation, depreciation is not available. Further, he also submits that in this order, the Tribunal took a view that depreciation is definitely not available in respect of the period in which unit was lying continuously closed. 5.1 We have considered the submissions made by both the sides. The first submission made by the ld. Counsel was that the show-cause notice itself was not issued in terms of the law and therefore the whole process was wrong. According to him, the show-cause notice proposed demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest has been specified in Notification No. 13/81, in Notification No. 53/97 interest also has been specified. Having undertaken to fulfil the export obligation and fulfill all other conditions and also having executed a bond as per the requirements of these notifications at the time of importation, after issue of a show-cause notice, the appellants cannot plead ignorance of the conditions of the notification and rely on a technical point that notice for demand could not have been issued under Section 72 of the Customs Act, 1962. Therefore, we are unable to accept the claim that the show-cause notice is not maintainable. Notification No. 13/81 in condition No. 6, it has been provided that the importer has to execute a bond as per the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies to only cases where goods have been removed from the warehouse properly. In this case, goods have not been removed and duty has been demanded for non-fulfillment of export obligation. Therefore, interest is payable in terms of the Notification No. 53/97-Cus. As regards Notification No. 13/81, there is no provision for recovery of interest. However, it is quite possible that subsequently notification could have been amended and therefore we leave it for consideration of the original adjudicating authority as to whether interest is payable for the earlier period as per the notification. 5.3 As regards confiscation, we find that decisions of the Tribunal cited by the ld. Counsel are applicable to the facts of this case. Therefore re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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