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TMI Blog2018 (8) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... duced in the Notification No. 140/1991 by customs notification No.64/2002-Cus dt. 24/06/2002 which is after the transfer of goods to the present unit and therefore this condition of use cannot be made applicable retrospectively. Under the notification No. 140/91, duty can be demanded only from Verifone if there is a violation of any condition of the said notification because the importer of the said goods is Verifone and not the present appellant. Time limitation - Held that:- The demand is also barred by limitation as the officers of the Department visited the unit of the appellant on 28/06/2005 and finally issued the show-cause notice on 02/05/2008 which is much beyond the period of limitation. The impugned order is not sustainable on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing software and realizing the foreign exchange thereon and has been regularly filing the Annual performance Report with the STPI, Bangalore. 2.2. M/s. Verifone India (P) Ltd. (Verifone for short) was also issued a Letter of Permission for development of computer software and was also issued Customs Private Bonded Warehousing License and In-Bond Manufacturing Sanction order under Section 58 and Section 65 of the Customs Act and were carrying out the activity of software development. Verifone imported as well as procured locally capital goods for use in the manufacturing and development of computer software and the said import was duly approved by the Director of STPI from time to time. Subsequently Verifone merged with the appellant during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the present appeal. 3. Heard both sides and perused the records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed contrary to the binding judicial precedent. He further submitted that on identical issue, the Tribunal has decided in favour of the assessee in the following Final Orders.:- i. Intel Technology India Pvt. Ltd. Vs. CC, Bangalore [Final Order No.20245/2018 dt. 06/02/2018] ii. CC, Bangalore Vs. Perot Systems TSI India Pvt. Ltd. [Final Order No.20739/2018] 4.2. He further submitted that there is no violation which has been committed in the process of transfer of capital goods on IUT to the appellant. He further submitted that the only objection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and payment of duty on a graded percentage depending on the period between the date of commencement of commercial production and the date of debonding/date of clearance, as the case may be and the impugned order confirmed the demand of duty on the depreciated value of the goods. He further submitted that once the depreciation has been allowed on the capital goods, thereafter the Department cannot take the ground that the goods have not been put to use. In support of this submission, the appellant has relied upon the decision in the case of Component Specialty (I) Pvt. Ltd. Vs. CC, Bangalore [2009(243) ELT 431 (Tri. Bang.)] 4.3. It is his further submission that the demand of duty from the appellant is not correct because the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with the goods only with the permission of the Customs officer. There can be no demand on such bonded warehoused goods unless and until these capital goods are either cleared for home consumption or removed in contravention of Section 78 of the Act. In support of this he relied upon the following decisions:- i. CC, Bangalore Vs. Infosys Technologies Ltd. [2003(159) ELT 863] ii. DSL Software Vs. CCE [2005(181) ELT 250] iii. Arjun Industries ltd. Vs. CCE, Jaipur [2005(70) RLT 7] 4.5. He further submitted that the goods cannot be confiscated if the goods are bonded in the warehouse as there is no violation of the post-importation condition. It is his further submission that the entire demand is barred by limitation because the office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were put to use by the Verifone prior to IUT. We also find that under the notification No. 140/91, duty can be demanded only from Verifone if there is a violation of any condition of the said notification because the importer of the said goods is Verifone and not the present appellant. We also notice that the finding of the Commissioner that the appellant has not obtained extension of warehousing period of the said goods is not correct as the appellant has obtained the renewal of the warehousing licence up to 30/09/2010 and the warehousing period of the capital goods is co-terminus with the period of warehousing licence granted to the appellant in view of the latest circular No.7/2005-Cus dt. 14/02/2005 issued by the CBEC. Further we ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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