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TMI Blog2015 (12) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as warehouse, and whether for captive consumption within the bonded premises, ex-bond bill of entry has to be filed and duty paid. The issue in Gemini Metal Works (1984 (12) TMI 314 - MADRAS HIGH COURT) related to cancelation of license and is not relevant in the instant case. On the other hand, we find our views are fortified by the decisions of this very Bench of the Tribunal in the case of M/s. Siddeshar Spinning Pvt. Limited vs. CCE, Bhavnagar [2013 (9) TMI 585 - CESTAT AHMEDABAD], which had also followed the earlier decisions of the Tribunal in the case of Nava Bharat Enterprises Limited - [2009 (12) TMI 396 - CESTAT, BANGALORE], Philips India Limited vs. Commissioner of Customs, Mumbai - [2000 (12) TMI 195 - CEGAT, MUMBAI] and Taurus Novelties Limited vs. Commissioner of Customs, Bangalore - [2004 (7) TMI 162 - CESTAT, BANGALORE]. The demand of duty with interest would suffice the cause of justice in the instant case and confiscation of the goods and penalty on the appellant are not warranted. - Decided partly in favour of assessee. - Appeal No. : C/422/2007 - ORDER No. A/11759/2015 - Dated:- 7-9-2015 - Mr. P.K. Das, Member (Judicial) And Mr. P.M. Saleem, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allation of the machinery were difficult to procure due to obsolete technology. He drew attention of the Bench to the fact that they had sought permission of the department to scrap and destroy the said capital goods but this was denied. They had also requested for extension of time for installation of the machinery which was also not granted by the department. He further contended that the goods imported were warehoused and since the goods were not cleared from bonded warehouse, no duty is leviable on the same. He also submitted that there was no suppression or malafide intention on their part and therefore, imposition of penalty was bad in law. The learned counsel cited the decisions of the Honble Madras High Court in the case of Gemini Metal Works vs. UOI 1985 (22) ELT 27 (Mad.) and Tribunal in the case of Macmillan India Limited vs. Commissioner of Customs,Bangalore 2008 (223) ELT 449 (Tri. Bang.), and Paras Fab International vs. CCE, Kandla 2010 (256) ELT 556 (Tri. LB). He therefore, pleaded that the impugned order-in-original is not sustainable in law and facts and should be set-aside. 3. On the other hand, learned Authorised Representative for Revenue submitted that u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Import Policy and to pay on demand an amount equal to the duty leviable on the goods and interest at the rate of 20% per annum on the said duty from the date of duty free importation or procurement of the said goods till the date of payment of such duty, if (i) in the case of capital goods, such goods are not proved to the satisfaction of the Assistant Commissioner of Customs to have been found installed or otherwise used within the bonded premises or re-exported within a period of one year from the date of importation or procurement thereof or within such extended period not exceeding five years as the Assistant Commissioner of Customs may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow; Condition No. 3(d) (I) (i) of Notification No. 52/2003-Cus. (3) The unit executes a bond in such form and for such sum and with such authority, as may be specified by the said officer, binding himself, (d) to pay on demand- (I) an amount equal to duty leviable on the goods and interest at a rate as specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and cleared by availing the benefit of the exemption under the notifications (supra), and the said capital goods were warehoused for installation of the same in the warehoused premises of 100% EOU for manufacture of final goods for export, and therefore, the goods are liable to customs duty once it is found that they are not eligible for the exemption under the said notifications (supra). We, therefore, find no reason to interfere with the impugned order of the adjudicating authority confirming the demand of duty of ₹ 74,11,970/- along with interest and therefore, we uphold the same. 6. However, as brought out hereinabove, the appellant had no malafide intention as they had not suppressed the facts from the department. To the contrary, they had approached the department for further extension of the time-limit as also for destruction of the subject goods, which were denied to them. We do agree with the learned Authorised Representative for Revenue that these orders, rejecting extension of time limit and destruction of subject goods had reached finality. However, we find that demand of duty with interest would suffice the cause of justice in the instant case and confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected this claim of the appellant as not substantiated. We find that it is reasonable to conclude that the EOU had wound up its business for want of business and funds. In this connection we find that the appellants have rightly relied on the decision of this Tribunal in Fal Industries Limited (supra) wherein the Tribunal has observed as follows : B. Confiscation of the goods imposition of penalty. We observe that in this case the appellants have come clean before the authorities that it was beyond their control to fulfill the export obligations because of various reasons and they could export only a negligible quantity of 1%. Further, there is no allegation in the show cause that the appellants-importer willfully sought to avail of the benefit of Notification with a view to gain any benefit. It is not the case of the department that there was deliberate attempt to avail of the notification by making any mis-declaration. The extent of the failure to fulfill the export obligation does not matter in a situation, as seen from the records that in this case, in fact the appellants had filed bank guarantee and sought for extension of time to fulfill the export obligation. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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