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TMI Blog2016 (9) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... r than computers and computer peripherals up to a maximum extent of 90% with the following stipulations for the units operating under EOU scheme for capital goods cleared in DTA. From a careful reading of the notification No. 53/97 customs dated 3rd of June 1997, it is seen that the capital goods at the time of clearance will be entitled to payment of customs duty on depredated value provided that the said unit has been allowed by the Development Commissioner to clear such goods in DTA. the unit commenced its production in the year 1994. The appellant has approached the Development Commissioner for de-bonding of the unit as early as 4th of February 1997. The adjudication order passed by the Commissioner originally, demanding customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case and also the fact that the appellant could not carry on its business because of adverse turn of business circumstances, a lenient view taken and the penalty imposed is waived. Appeal disposed off - decided partly in favor of appellant. - Customs Appeal Non 51188 of 2016 - Final Order No. 53207/2016 - Dated:- 24-8-2016 - Mrs. Archana Wadhwa, Member (Judicial) and Shri V. Padmanabhan, Member (Technical) Shri Arun Goyal, Advocate - for the appellant. Dr. Shri S.K. Sheoran, Authorized Representative (DR) - for the Respondent. ORDER The Present appeal is filed against the order dated 15/03/2016 passed by the Commissioner Central Excise, Alwar. The impugned order was passed by him as per the direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms duty amounting to about ₹ 40 Lacs leviable on capital goods imported duty free. Since the appellant had already paid the entire customs duty along with interest thereon and even the penalty imposed in the original order, he also appropriated the same. 4. The appellant has challenged the impugned order mainly on the ground that they will be entitled to depreciation while calculating the duty payable on the capital goods imported by them for use in their EOU. In the impugned order, the learned Commissioner, while working out the duty payable on the imported capital goods, has not given such depreciation which, according to the appellant, will be their entitlement. 5. We have heard Shri Arun Goyal, learned advocate for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile calculating the duty due on the capital goods at the time of de-bonding of EOU was available only in cases where the capital goods were allowed to be sold by the Development Commissioner. In the present case, since the unit has been closed and the export obligations have not been fulfilled, the appellant will not be entitled to depreciation. 9. We have carefully considered the arguments made from both sides. We have also gone through the relevant records. The appellant was issued a license by the concerned authorities for undertaking manufacture in-bond in terms of the customs notification. As per the terms of the hundred percent EOU scheme, the appellant was required to export hundred percent of their production. It is an admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of commercial production of the unit or where such goods have been imported after such commencement; from the date such goods have come into use for commercial production, up to the date of payment of duty . 10. The CBEC circular No. 43/98 dated 26th of June 1998 issued from file No. 314/19/98 allows depreciation for the capital goods other than computers and computer peripherals up to a maximum extent of 90% with the following stipulations for the units operating under EOU scheme for capital goods cleared in. DTA: For every quarter in the 1st year-4%-16% in the 1st year For every quarter in the 2nd year-3%-12% second-year For every quarter in the 3rd year-3%- 12% third-year For every quarter in the 4th year-2.5%- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands allowed in the various case laws cited by the Tribunal, which supports the above view. 12. The appellant has also raised the argument that since the goods were auctioned by the government, and are no longer in their possession, no customs duty would be payable by them. We find that this argument is misplaced. The appellant's unit was registered as 100% EOU. The unit was started in 1994 and was in existence till 2011, i.e. till de-bonding of the unit. The customs duty as computed originally by the Commissioner was discharged by the appellant in 2011 and thereafter the capital goods were auctioned by the government. Under the circumstances, we are of the opinion that they are liable to pay the customs duty and cannot take shelt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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