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TMI Blog2014 (10) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... first ascertain the date of clearance of the machines from EOU to DTA so that depreciated value can be correctly determined. The Adjudicating Authority in de novo proceeding also required to ensure the correctness of the appellant’s claim regarding time and amount of payment of duty paid on said machines. - Matter remanded back - Decided in favour of assessee. - C/86166-86171/2014-Mum - Final Order Nos. A/1605-1610/2014-WZB/C-I(CSTB) - Dated:- 16-10-2014 - Shri P.R. Chandrasekharan, Member (T) and Ramesh Nair, Member (J) Shri M. Neerav, Advocate, for the Appellant. Shri Ahibaran, Addl. Commissioner (AR), for the Respondent. ORDER These six appeals and stay applications are directed against order-in-original No. 159-16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried out on 30-7-2010 and was found that both the above machines were not available in the factory premises. In the statement, dated 30-7-2010 Shri Mukesh Kumar Chugh, Vice President of the assessee company stated that, the Computer Embroidery machine was removed on 1-7-2010 to M/s. New Era Fabrics Ltd., Matunga and Caterpillar Gas Engine Model was cleared on 3-7-2010 to M/s. Royal Carbon Black Pvt. Ltd., Matunga. Search was conducted at both the above units and both the machines were found which were seized on the belief that the same were liable for confiscation and given on Suparatnama to both the respective units. A show cause notice bearing F. No. V/PI/Gr-II/RGD/Hanil Era/27/10, dated 1-2-2011 was issued to M/s. Hanil Era Textile Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st installed in the EOU and it is cleared only after use for about 4 years. He further submits that they have intimated to their Jurisdictional Superintendent regarding removal of both the machines vide their letter, dated 14-11-2009 and 23-3-2010 which said to have posted under certificate of posting. He invited our attention to the relevant para 6.15(b) of Foreign Trade Policy and corresponding handbook of procedure para 6.34, wherein the capital goods is permitted to be cleared in DTA on payment of applicable duty. He pointed out that, there is no provision for obtaining permission from Development Commissioner for removal of such capital goods on payment of appropriate excise duty. Accordingly, the appellant, M/s. Hanil Era Textile Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion either from Development Commissioner or from the jurisdictional central excise officer. On the issue, whether under facts and circumstances of this case, the appellant is eligible for the exemption Notification No. 52/2003-Cus., we are of the considered view that if the machines are installed and put to use by 100% EOU, the condition of Notification No. 52/2003-Cus., stands complied with and after use, if the machines are cleared to DTA units, it is permitted on the condition of payment of customs duty on the depreciated value and on the rate of duty prevailing at the time of removal of such machines in terms of Notification No. 52/2003-Cus. As regards, the contention of ld. Commissioner that the appellant has not obtained any permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat -] [(a) [such clearance or debonding of capital goods may be allowed on payment of duty on the depreciated value thereof and the rate in force on the date of debonding or clearance, as the case may be, if the unit has fulfilled the positive NFE criteria taking into consideration the depreciation allowable on the capital goods at the time of clearance or debonding. In case of failure to achieve the said positive NFE, the depreciation shall be allowed on the value of capital goods in the same proportion as the achieved portion of NFE.] The depreciation shall be allowed in straight line method as specified below, namely :- (i) For computer and computer peripherals : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction to the date of debonding or clearance, as the case may be; In above para 4 of the notification, it is permitted for clearance of the used capital goods irrespective, the NFE is achieved or otherwise. In case the NFE is not achieved, the depreciation will be allowed on pro rata basis on achieved portion of the NFE. The quantum of depreciated value for charging excise duty can be decided only after ascertaining the period of use of the machines in question in the EOU. The ld. Commissioner in the impugned order did not decide explicitly the date of removal of the machines. The appellants claimed that they cleared the machines vide their Invoice No. 03/1-7-2010 and 04/3-7-2010. However, in the impugned order in para 12 it is contende ..... X X X X Extracts X X X X X X X X Extracts X X X X
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