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TMI Blog2013 (10) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... uld like to clear a portion of the capital goods on payment of duty, paragraph 4 is to be applied whereas where the duty is being demanded at the time of closure of the unit, paragraph (3)(d)II) of the Notification would apply - I am not convinced with the arguments advanced by the learned counsel - If this is correct, where a unit achieved export obligation within first year or second year, they need not pay any duty - This interpretation does not follow from the notification - ground taken by the department is prima facie correct - the department has made out strong prima facie case in their favour - the stay is required to be granted – the order is stayed as prayed by the department – Stay granted. - Appeal No. 3399 of 2012 - MISC. ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the appellant is not eligible for refund on merits and, therefore, the stay is required to be granted. The learned counsel has contested this submission of the department. 3. I have considered the submissions made by both sides. I have also gone through the condition No. (3)(d)(II) of paragraph 1 to the Notification No. 52/2003-Cus dated 31.3.2003 which reads under :- In case of failure to achieve the said positive Net Foreign Exchange Earning, the duty equal in amount to the portion of the duty leviable on the said goods but for the exemption contained in this notification and the duty so payable shall bear the same proportion as the unachieved portion of Net Foreign Exchange Earning bears of the positive Net Foreign Exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld apply. I am not convinced with the arguments advanced by the learned counsel. If this is correct, where a unit achieved export obligation within first year or second year, they need not pay any duty. If that be the case, paragraph 4 becomes totally otiose. This interpretation does not follow from the notification. In my opinion, ground taken by the department is prima facie correct. Therefore, in the circumstances, the department has made out strong prima facie case in their favour. Therefore, the stay is required to be granted. Accordingly, the impugned order is stayed as prayed by the department. The other issues raised by the department have not been considered at this stage. Since on the first issue itself, the department has made ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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