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TMI Blog2010 (5) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... ndisputed that the capital goods which were procured by claiming benefit of exemption under Notification No.126/94-Cus was installed and used for production of goods for export - as per notification, the demand of the duty on the capital goods cannot be sustained. Enhancement of penalty imposed by the adjudicating authority - Held that:- As we have held in favour of the appellant/assessee on merits and set aside the impugned order, there cannot be any penalty on the appellant and hence, question of enhancement of the penalty as prayed in the Revenue’s appeal does not arise. Appeal allowed - decided in favor of appellant. - Appeal No.C/824/08; C/129/09 - Final Order Nos. 960-961/2010 - Dated:- 20-5-2010 - Mr. M.V.Ravindran and Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after receiving such a communication from the DGFT authorities, issued a show cause notice dt. 18/12/2006 for demand of customs duty foregone by the Revenue on import of capital goods and raw materials, consumables and components etc. The appellant resisted the show cause notice. The adjudicating authority after considering the submissions confirmed the demand raised in the show cause notice and directed the appellant to pay the interest and imposed penalty of ₹ 5 lakhs u/s 114 of the Customs Act, 1962. Aggrieved by such an order, assessee is before us in appeal No.C/824/08. Revenue is also aggrieved by the impugned order on the ground that that the adjudicating authority should have imposed equivalent amount of penalty and hence they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Notification No.53/97 was interpreted by the Bench which had the very same clause as is in Notification No.126/94. It is his submission that the appellant is eligible for the benefit of depreciation. It is his submission that the capital goods were installed in the factory premises and exports were made and subsequently in 2006, the Unit was de-bonded by the DGFT authorities. He would submit that the benefit of these capital goods as per Board circular No.305/136/92-FTT dt. 5/6/1992. He would submit that the decisions of this Bench in the following cases will squarely cover the issue in their favour. a. Khabros Steel India Ltd. Vs. CCE [2006(194) ELT 117 (Tri. Del.)] b. Profitex Pvt. Ltd. Vs. CCE [2008(226) ELT 711 (Tri. Mum.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that the decision relied upon by the ld. DR is in the said matter and is not of final disposal of the appeal. 5. We have considered the submissions made at length by both sides and perused the records. 6. The issue involved in this case is whether the appellant is required to discharge customs duty foregone by the Revenue on the capital goods and raw materials, consumables and components, imported for setting up of green house for export of cut flowers as per the letter of permission given by DGFT. It is undisputed that the appellant had obtained permission from the DGFT to establish a 100% EOU unite. It is also undisputed that the appellant had imported capital goods, raw materials, components and consumables by filing the bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal to the duty leviable on the goods and interest at the rate of 20% of the said duty from the date of duty free importation or procurement of the said goods till the date of payment of such duty. It is also seen from the clause 3(iv) as per the notification reproduced herein above, the importer has to discharge such duty liability only in the case of raw materials, components, spares and consumables. The duty foregone on the capital goods has been excluded from the payment of duty as the condition for exemption on the capital goods was only limited for installation of the capital goods and used within the unit for the manufacture of goods for export. As recorded earlier by us, it is undisputed that the capital goods which were procured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stt. Commissioner or Dy. Commissioner may allow on being satisfied that there is sufficient cause for not using them as above within the said period. Clause 6(iv) provides that in the case of raw materials..........(other than capital goods) procured duty free, duty can be levied if the unit fails to achieve Net Foreign Exchange Earning as a Percentage of Exports (NFEP) and Export Performance (EP) as specified in Appendix 1 of the Exim Policy within one year of importation or procurement of such goods or within such extended period not exceeding one year as the Asstt. Commissioner or Dy. Commissioner may allow on being satisfied that there is sufficient cause. In other words, the Notification provides for levy of duty only on raw materials, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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