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TMI Blog2012 (11) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... e Managing Director and the other appellant Shri Mohd. Tariq Abbasi is the Director of the appellant company. In August, 1996 they were issued a LOP dated 16-8-1996 for setting up a floriculture 100% EOU and for this purpose they were entitled to import free of duty or procure indigenously free of Central Excise Duty, the capital goods, components, consumables and raw materials subject to condition that the same are used for production of flowers for export. The flowers produced were to be exported to general currency area countries/hard currency area for a period of 10 years with positive NFE. On the basis of the above LOP, the appellant company were issued a private bonded warehouse licence under Section 58 of the Customs Act, 1962 and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously manufactured goods procured free of excise duty for violation of the provisions of the exemption Notification No. 136/94-C.E., as amended, alongwith interest on this duty; (d) confiscation of the goods placed under seizure under Section 111(o) of Customs Act, 1962; and (e) imposition of penalty under Section 112 of Customs Act, 1962 as well as 114A of Customs Act, 1962 on the appellant company and also on its Director and Managing Director. 1.2 The show cause notice was adjudicated by the Commissioner vide order-in-original dated 11-3-2004 by which the private bonded warehousing licence of the appellant company was cancelled, the duty demands as proposed in the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assistant Development Commissioner, NEPZ, which mentioned that the appellant company had fulfilled the export obligation as per the terms and conditions of the LOP. Accordingly, the matter was adjudicated de novo once again by the order-in-original No. 2/COMM/MRT-I/2010 dated 29-1-2010. Before these de novo adjudication proceedings, it was found that the letter dated 21-5-2007 issued by the office of Development Commissioner had been withdrawn by them, but taking into consideration the appellant's contention that initially they had made sincere efforts to meet the export obligation and some exports had been made, but subsequently on account of arrest of the Managing Director as well as Director of the appellant company for alleged fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appeals were heard for final disposal. 3.1 Shri M.K. Mittal, Advocate, the learned Counsel for the appellant, pleaded that the appellants after issue of the LOP and issue of the private bonded warehouse licence and procuring the capital goods other material free of Customs duty and Central Excise Duty, had installed those capital goods and all efforts had been made to meet the export obligation by exporting the flowers produced, that in January 2000 on account of a police complaint against the appellant company and its Directors regarding mis-appropriation of money, both the Director as well as Managing Director were arrested and put in the jail because of which the operations of their EOU stopped, that they were acquitted of al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er's order restricting depreciation to 60% on the basis of his interpretation of the provisions of Notification No. 52/2003-Cus., which are not even applicable to this case, is not correct, that the depreciation on the capital goods is to be allowed from the date of commencement of production which in the case of appellant is 21-5-1997, till the date of debonding - 12-6-2009, that no penalty is imposable on the Managing Director and Director of the appellant company as they had neither done nor omitted to do anything which act or omission had rendered the goods liable for confiscation, that when the Commissioner has vacated the seizure of the goods and held the same not liable for confiscation, there is no justification for imposition of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable. In our view, since the goods had been imported during June 1997 - July 1998 period by availing exemption under Notification No. 53/97-Cus., dated 3-6-1997, it is the provisions of this Notification, which would be applicable for determining the quantum of depreciation available to the appellant. In terms of para 5(a) of this Notification, the duty on the used capital goods at the time of debonding is payable on the depreciated value at the rate in force on the date of payment of duty and in terms of explanation to para 5(a) of the Notification, the depreciation is to be allowed for the period from the date of commencement of commercial production upto the date of payment of duty. If the date of debonding - 12-6-2009 is treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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