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TMI Blog2007 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... r per: S.L. Peeran, Member (J)].-1. The stay application and appeal are taken up together as the issue lies in short compass. Both the sides have been heard in detail. 2. This appeal arises from Order-in-Appeal No. 378/2006-C.E. dated 11-12-2006 confirming Order-in-Original No. 3/2003 dated 25-6-2003 passed by the Additional Commissioner of Central Excise. The findings recorded by the Commissioner (A) in Para 7 is reproduced herein below: "7. I have carefully gone through the case records, submission of the appellants in writing as well as during personal hearing, rival contentions and he impugned order. The issue to be decided is whether duty can be demanded when the imported and the indigenous goods are still in the warehouse in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of NFEP/EP for the period 5-6-1995 to 31-3-2000 by the adjn. Order dated 18- 8-2001 and this penal provision applicable is independent of the Central Excise and Customs statute; that removal of raw materials and capital goods as per verification of the capital goods registers/raw materials constitute violation of Sec. 72 of Customs Act, 1962 and has also ruled that the extended invocation in this case is not relevant as the assessment is provisional and the goods are in the warehouse as the Additional Commissioner has cited the case law in the matter of Mediwell Hospital and Healthcare Pvt. v. UOI - 1997 (89) E.L.T. 425 (S.C.). The appellants' contention is that unless there is a express permission from the DC, VEPZ, the C.E. Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a situation without any performance by the appellants cannot be kept pending for the fault of the appellant and as per the SC decision cited supra, the demand is not hit by limitations in case of bonded warehoused goods of EOU with provisional assessment and their contention that the demand is premature as the goods are still in the warehouse, is not rational. Department cannot leave the duty to remain as such for indefinite period for the party's non-performance and default. Hence I find that the demand of duty against the goods procured duty free under CT-3 is in order. So also the demand of interest is also justified from the date of finalization of the assessment through the Order-in-original. As the party has defaulted deliberately ..... X X X X Extracts X X X X X X X X Extracts X X X X
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