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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 ..... eciation is to be allowed for the period from the date of commencement of commercial production upto the date of payment of duty - matter has to be remanded to the Commissioner for re-quantification of the duty demand Penalty under Section 117 of Customs Act and Rule 26 of the Central Excise Rules, 2001/2002 - DTA clearances were in excess of the prescribed limit of 5% of export turnover and that they did not give intimation to the Department regarding their export performance – Held that:- Penalty on the Managing Director and Director cannot be imposed under Section 117 of Customs Act, 1962 and Rule 26 of Central Excise Rules - matter is remanded to the Commissioner for de novo adjudication for the purpose of re-quantification of the duty demand - E/2086-2087 and 2385/2010 - A/131-133/2012-EX(BR)(PB) - Dated:- 28-11-2011 - Ms. Archana Wadhwa, Shri Rakesh Kumar, JJ. REPRESENTED BY : S/Shri V.K. Agarwal and P.K. Mittal, Advocates, for the Appellant. Shri I. Beg, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. The facts leading to these appeals and stay applications are, in brief, as under : 1.1 M/s. Al-Falah Blossoms Limited, Meerut (here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 were confirmed alongwith interest, the goods under seizure were confiscated with option to be redeemed on redemption fine of Rs. 50,00,000/- and while penalty of Rs. 50,00,000/- and Rs. 2,77,61,571/- were imposed on the appellant company under Sections 112 and 114A respectively, penalty of Rs. 10,000/- each was imposed on Shri Jawad Ahmad Siddiqui and Shri Mohd. Tariq Abbasi, Directors of the appellant company. The appellants filed an appeal before the Tribunal against the above order and the Tribunal vide Final Order Nos. 619-620/2005 dated 6-4-2005 [2005 (190) E.L.T. 333 (Tri.-Del.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alongwith the interest. Penalty of Rs. 50,000/- each was also imposed on the Managing Director and Director of the appellant company. The Commissioner in this order - determined depreciation as per the provisions of Notification No. 52/2003-Cus. and 22/2003-C.E., holding that it is these notifications which would be applicable and not the Notification No. 53/97-Cus. and 136/94-C.E. Against this order of the Commissioner, these appeals alongwith stay applications have been filed. 2. Heard both the sides. 3. Though these matters were listed for hearing of the stay applications only, after hearing the same after some time, we are of the view that the matter can be finally disposed of and accordingly with the consent of both the sides, 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 Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner has vacated the seizure of the goods and held the same not liable for confiscation, there is no justification for imposition of penalty on the Managing Director and Director of the appellant company and that in view of the above, the impugned order is not correct. 3.2 Shri I. Beg, the learned SDR defended the impugned order by reiterating the findings of the Commissioner in it and emphasized that the depreciation is to be calculated as per the provisions of Notification No. 52/2003-Cus. which was the Notification in force at the time of debonding. 4. We have carefully considered the submissions from both the sides and perused the records. 5. In this case, the appellant company - a 100% EOU, had commenced commercial production of flowers on 21-5-1997 and there is no dispute about this. There is also no dispute that this unit was allowed to be debonded by the Development Commissioner on 12-6-2009. At the time of debonding, the duty is required to be paid on the imported/indigenously procured capital goods, inputs and finished products, if any. In this case the duty is required to be paid is only on the capital goods. There is no dispute that the duty is to be paid on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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