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TMI Blog2018 (5) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmation of demands raised by the adjudicating authority and penalties imposed. Appeal No. E/275/2006 is individually filed by Shri A.G. Subbarayan, AGM, Nagarjuna Aqua Exports Limited against personal penalty imposed on him. Appeal No. E/519/2006 is filed by Revenue against order of the adjudicating authority of granting depreciation to the main appellant in respect of the demands raised on capital goods. 3. The relevant facts that arise for consideration, after filtering out unnecessary details, are that Nagarjuna Aqua Exports Limited is an 100% EOU engaged in production and export of shrimps; imported capital goods and raw materials in terms of notification No. 196/94 - Cus dated 08.12.1994 for use in aquaculture project, with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms duty on imported raw materials used in the production of shrimp seed, the same does not stand scrutiny of law as the final products manufactured are non-excisable and customs duty paid for the purpose of manufacture of such exempted goods need to be equivalent to the customs duty and shrimp seeds being non-excisable, demand is incorrect and that extended period has been invoked as per section 28 of Customs Act, 1962, which is also incorrect as show cause notice is issued in the year 2005 while the import is for the period 1994 - 95 to 1997 - 98 and the period of limitation was not considered. As regards the demand of customs duty on capital goods, it is her submission that those capital goods found short were stolen and some of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made by Ld. Counsel on her words and hold that appeal abates. Appeal stands disposed of as abated. 8. As regards confirmation of demands raised against Nagarjuna Aqua Exports Limited, we find that in respect of clearances of prawns to DTA, without payment of applicable duties, we hold that during the period upto 11.05.2001, the excise duty on sale of shrimp seed was chargeable under main section 3(1) of Central Excise Act, 1944 and during the period till 11.05.2001, excise duty was nil. This is the law which has been settled by Apex Court in the case of NCC Blue Water products Limited. Respectfully following the judgment of Hon'ble Apex Court, we hold that the demands raised on point No. 1, to the extent they are for the period prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were stolen or washed away during flood. In the absence of any evidence, we are of the view that the demands confirmed by the adjudicating authority needs to be upheld. At this juncture, Revenue's appeal for enhancing the said demands on the ground that depreciation granted by the adjudicating authority seems to be erroneous as the capital goods were not found in the factory premises, is an argument which needs to be rejected as there is no dispute that these capital goods were brought into EOU as per notification No. 196/94 - Cus, installed and were used. If that be so, the depreciation allowed by the adjudicating authority seems to be in consonance with the Board Circular on the point. In view of this, we find no merits in the appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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