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TMI Blog2014 (8) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... s on payment of duty. The appeal was thus allowed by way of remand for re-calculating the amount of duty. Unfortunately, Revenue did not file appeal against this order - When the matter touches the root and Show Cause Notice alleges that no manufacture and export of end product was done for which duty forgone on the imported capital goods was sought to be recovered, that calls for a detailed examination of the entire material evidence on record to enquire whether the capital goods allowed to be imported by the assessee duty free were installed in NEPZ and utilized for any manufacturing activity carried out and whether export of end product was made - Following decision of appellant s own case reported in [2002 (8) TMI 369 - CEGAT, NEW DELHI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , duty along with interest @ 20% PA becomes chargeable. Since the capital goods are not being utilized since long and the unit is lying closed, hence benefit of exemption is no longer applicable to such unutilized capital goods. In view of the foregoing, it appears that the said unit has violated the provisions of Notfn. No.339/85-Cust. Dt. 21.11.1985 and 133/94-Cus. Dt. 22.06.1994 (as amended from time to time), 5/86-CE dt.20.01.1986 and 126/94-CE dt. 02.09.1994 (as amended from time to time) and EXIM Policy (as amended) read with provisions of LOA and the Bond executed with Customs. Moreover, the letter of approval issued by the Development Commissioner, NEPZ also stands explained. In absence of its renewal and that the Development Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the above evidence Revenue shall remove its doubt about the functioning of the assessee unit in the NEPZ. Therefore ld. Adjudicating Authority upon examination rightly allowed depreciation. 5. Revenue, on the other hand, says that ld. adjudicating authority has not considered the allegations in the Show Cause Notice at all. But allowed depreciation without the duty free capital goods imported being utilised by the assessee. Revenues further grievance is that when the allegation in Show Cause Notice was non utilisation of capital goods the assessee has every time changed its stand to bring new issues at all stages including de novo stage. Whether depreciation on such capital goods was allowable or not was not the allegation in Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to conditions of Notification. But grievance of Revenue being that at no point of time any manufacturing activity was carried out by the assessee, the capital goods were not depreciated at all. First this point is to determined. 7. When the matter touches the root and Show Cause Notice alleges that no manufacture and export of end product was done for which duty forgone on the imported capital goods was sought to be recovered, that calls for a detailed examination of the entire material evidence on record to enquire whether the capital goods allowed to be imported by the assessee duty free were installed in NEPZ and utilized for any manufacturing activity carried out and whether export of end product was made. Therefore, ld. adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns were filed disclosing the turnover, if any, during the allegation period. (ix) Whether any labour records were maintained to show the utilization of manpower in manufacture. (x) Enquiry, if necessary, from different authorities required to be carried out to satisfy that the capital goods imported were installed and utilized for manufacture of the permitted output during the allegation period and amount of foreign exchange earned during allegation period. 8. Copies of documents as stated above furnished by the ld. consultant needs to be examined during re-adjudication for satisfaction of the Authority to test the allegations made in Show Cause Notice. The authority may cause any enquiry that may be warranted to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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