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TMI Blog2015 (10) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... l export obligation or to achieve NFEP – For period 1997-2002 appellants have not fulfilled obligation – For subsequent period, he was allowed to exit scheme – In view of observation, matter requires more detailed consideration – Matter to be reconsidered by Commissioner – Decided against Assesse. - Appeal(s) Involved: C/567/2009-DB - Final Order No. 21472 / 2015 - Dated:- 26-5-2015 - SHRI G. RAGHURAM AND SHRI B.S.V.MURTHY, JJ. For The Appellant : Mr. G. Prahlad Mr. Karan Talwar, Advocates For The Respondent : Dr. A. K. Nigam, Addl. Commissioner (AR) Per : B.S.V.MURTHY The appellant is a 100% Export Oriented Unit (EOU) engaged in the production/manufacture of Sodium Perborate and Hydrogen Peroxide falling under Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or processing of additional product viz., Hydrogen Peroxide and export the same to achieve export obligation. The appellant informed on 7.1.2014 that they would be getting unstabilized hydrogen peroxide, stabilize and pack the same in cans and drums for further export. The storage tanks and machinery would be used for this purpose. On 22.5.2006, proceedings initiated for non-fulfillment of obligation and non-achievement of positive NFE were dropped considering that the appellant has fulfilled obligations as per the LOP. On 18.10.2016, permission was sought to exit from EOU scheme which was allowed on 22.11.2006 and in November 2007 a final order was issued by the Development Commissioner allowing appellant to exit from the 100% EOU scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner and Development Commissioner had taken a view that appellants had achieved positive NFE as required in the LOP and had fulfilled the export obligations. Therefore for the period subsequent to 2003, there was no obligation on the appellant. It was also submitted that when the order was passed on 6.11.2008, several decisions on the issue were not available and could not be cited. Some of them are as under: (i) Girnar Industries vs. CIT: 2010 (254) E.L.T. 79 (Ker.) (ii) Hewlett Packard India Sales (P) Ltd. Others vs. CC, Bangalore: 2009 (241) E.L.T. 545 (Tri.-Bang.) (iii) Tirumala Impex vs. CCE: 2010 (251) E.L.T. 310 (Tri.-Mum.) (iv) Baccorse Perfumes and Beauty Products Ltd. vs. CCE: 2006 (194) E.L.T. 310 (Tri.- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the submissions. We find that as submitted, Notification No.13/81-Customs dated 9.2.1981 provided for payment of duty on the raw materials and consumables imported by the EOU in case of failure to either fulfill the export obligation or to achieve NFEP. When it was rescinded by Notification No.53/1997 dated 3.6.1997 till it was amended in 2003, there was no provision for demanding Customs duty on capital goods. Even in Notification No.53/1997 when it was amended in 2003, provision was made to demand duty on capital goods only when the capital goods were not installed. This provision remained till 2007. We find this submission to be correct. 4.1 We also find that processing of Hydrogen Peroxide by the appellant can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al conclusions of the Commissioner are contained in paragraph 42 and portion of 43 which are reproduced below. 42. Finally, I would like to draw a brief summary of my findings. The assessee has procured duty free capital goods imported and procured indigenously, for the manufacture and export sodium perborate . The assessees were penalized by the Development Commissioner for the negative NFE and for shortfall in fulfillment of export obligation during the block year 1997-2001. The Development Commissioner has accorded permission to the assessees to manufacture and export hydrogen peroxide under Broad Band Scheme. Though the assessees claim that they have earned positive NEF for the next period from 2002 to 2007, the NFE is not earned by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feel very strong that duty cannot be demanded on the capital goods and raw materials procured duty free then they should stick to that stand. There is no need to contend that, only duty can be demanded but not interest, and that duty should be demanded on the depreciated values only, etc. This clearly proves that they are aware of their violations and liabilities but are only saying some thing or other to draw the attention of the adjudicating authority to various directions. Since they raised the issues of time bar and demand of duty on depreciated values I would like to record in my findings that they are not eligible for depreciation as they have not fulfilled the conditions of the Notifications and not fulfilled export obligation by man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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