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TMI Blog2014 (12) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... imum of 70%. Later on vide Circular No. 49/2000, dated 22-5-2000, the norms were further liberalized and the maximum amount of depreciation was permitted at 90% for a period of 8 years and for computer and computer peripherals, accelerated depreciation was allowed. Later on these depreciation rates were incorporated in the notification itself and Notification No. 52/2003, dated 31-3-2003 provides for depreciation norms in para 4 of the Notification itself for capital goods other than computer and computer peripherals and computer and computer peripherals separately. Similarly, Notification No. 22/2003-C.E., dated 31-3-2003 provides for depreciation on capital goods procured independently. Thus from the circulars issued by C.B.E. & C. from time-to-time, it is clear that depreciation has to be allowed in respect of the capital goods, from the date of installation/use of capital goods till the date of de-bonding. Similar provisions exist in respect of domestically procured capital goods also. Therefore, the finding of the adjudicating authority that the appellant is not eligible for depreciation on capital goods is completely contrary to the express provisions of EXIM Policy as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f infrastructure facilities for STP units. They were also granted licence for Bonded Warehouse under Section 58 of the Customs Act, 1962 by the Customs department at Pune. The appellant procured 9 Nos. of Electric Generating Sets valued at ₹ 3,45,38,396/- without payment of excise duty under Notification No. 22/2003-Cus., dated 31-3-2003 and also imported Air Conditioning equipment valued at ₹ 2,03,43,067/- by availing the benefit under Notification No. 153/93-Cus., dated 13-8-1993. The excise duty benefit availed by the appellant on the local procurement amounted to ₹ 1,13,37,632/- and the customs duty benefit availed amounted to ₹ 77,68,650/-. The appellant applied for de-bonding of capital goods procured to the Director, STPI, Pune on 11-11-2008 and also agreed to pay customs/excise duty on depreciated value of the capital goods. They also intimated to the jurisdictional excise department accordingly. The application for de-bonding was considered by the Department of Information Technology, who directed the appellant to first pay all duties on capital goods and obtain No Objection Certificate (NOC) for grant of approval for de-bonding. The appellant accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pherals as under :- For every quarter in the first year @ 10% For every quarter in the second year @ 8% For every quarter in the third year @ 7% For every quarter in the fourth year and thereafter @ 5% Subject to a maximum of 90% Circular Nos. 27/98, dated 24-4-98 and 43/98-Cus., dated 26-6-98 stand modified to the above extent. Therefore, since the appellant is a 100% EOU, the appellant is rightly entitled for depreciation benefit at the time of de-bonding in terms of EOU scheme under the STP and also in terms of the Circular issued by the Board from time-to-time. Therefore, the denial of depreciation to the appellant is incorrect in law. He also refers to Circular No. 1/2007-Cus., dated 3-1-2007, wherein the CBE C has clarified the scope of the term, export of software mentioned in Notification No. 153/93-Cus. As per this notification, it is reproduced below :- Circular No. 1/2007-Cus. F. No. DGEP/IMSC (STP EHTP)/305/2006 Government of India Ministry of Finance Department of Revenue Central Board of Excise Customs Directorate General of Export Promotion 3rd January, 2007 Subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Suvarna Aqua Farm - 2005 (190) E.L.T. 284 (T) (iv) Solitaire Machine Tools - 2003 (152) E.L.T. 384 (T) (v) Premier Granite - 2007 (210) E.L.T. 200 (T) (vi) Anjaleem Enterprises - 2007 (210) E.L.T. 204 (T) (vii) Profitex Pvt. Ltd. - 2008 (226) E.L.T. 711 (T) Accordingly, he pleads that the matter be remanded back to the adjudicating authority for reconsideration afresh and allowing the benefit of depreciation while determining the duty liability. 4. The learned Addl. Commissioner (AR) appearing for the Revenue reiterates the findings of the adjudicating authority and says that since the Notification did not provide for any depreciation, the same cannot be granted. 5. We have carefully considered the submissions made by both sides. 5.1 This is the second round of litigation and on the earlier occasion when the matter came up before the Tribunal, the matter was remanded back to the adjudicating authority for considering the excise duty liability on which no finding had been given in the earlier order. Since the issue involved in the present appeal lies in a narrow compass, we take up the appeal itself for consideration and disposal after disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red independently. Thus from the circulars issued by C.B.E. C. from time-to-time, it is clear that depreciation has to be allowed in respect of the capital goods, from the date of installation/use of capital goods till the date of de-bonding. Similar provisions exist in respect of domestically procured capital goods also. Therefore, the finding of the adjudicating authority that the appellant is not eligible for depreciation on capital goods is completely contrary to the express provisions of EXIM Policy as also the provision of Notification Nos. 52/2003-Cus., dated 31-3-2003 and 22/2003-C.E., dated 31-3-2003 and Boards Circulars issued from 1994 onwards. Therefore, the said order cannot be sustained in law. In view of the above, the matter has to go back to the adjudicating authority for fresh consideration for determining the quantum of duty which the appellant is liable to pay at the time of de-bonding by taking into account the appellant s entitlement to depreciation on the capital goods sought to be de-bonded in terms of the rates prescribed under Notification No. 52/2003-Cus. and 22/2003-C.E. from the date of installation/putting to use of the capital goods till the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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