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TMI Blog2019 (8) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... /2003 Cus. dated 31.03.2003 and 22/2003-CE dated 31.03.2003. During the course of verification the Department observed that certain capital goods were not available for physical verification. The appellants have paid duty of Rs. 1,97,536/- (Rupees One Lakh Ninety Seven Thousand Five Hundred and Thirty Six only) being the duty foregone on such capital goods alleging that the appellants have removed the goods from bonded premises without following proper procedure and without maintaining proper records. A show-cause notice was issued and was adjudicated by Order-in-Original No. 129/2008 dated 28.11.2008 confirmed the duty, penalty and interest. On an appeal filed by the appellant, learned Commissioner (Appeals) vide Order-in-Appeal dated 06.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Rechargeable Power Pack and Self-test assembly etc were very small in size and prone to movement within the warehouse and also did not bear any individual indentifiable mark so that the goods could be traced at the time of inspection or immediately thereafter; just because the appellants could not produce the goods it cannot be alleged that they have been clandestinely removed. The Department could not prove that the goods were removed from the premises in contravention of Section 72(a) read with Section 71 of the Customs Act; the impugned goods were not prohibited and therefore confiscation of imposition of penalty is not sustainable. The learned counsel also submits that the dispute is no longer res judicata and has been squarely settle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard both sides and perused the records of the case. It is seen that the appellants have obtained extension of warehousing period in respect of 82 bonds and only in respect of 8 bonds, they could not produce the goods for verification. We also find that while the goods appear to have been imported during 2002-03, the inspection appears to have been conducted during 2008 i.e. above 5 years later than the import. As submitted by the appellants, we do not find that the Department has produced any evidence to prove that the goods have been clandestinely removed by the appellants from the bonded warehouse. It is also not disputed that the goods have been warehoused after import. Looking into the volume of the capital goods and other goods impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or finding of such removal from the warehouse. The assessee all along maintained that the impugned goods were available in stock in the warehouse. We find that the impugned demand of duty cannot be sustained under Section 72(a) of the Act without evidence of their removal as envisaged in the said section. In this view of the matter the question of depreciation and admissibility of part of the goods (Order No. 23/08) not being entitled to the benefit of the notifications is also not relevant. As the goods had been warehoused and undisputedly used for the manufacture of export goods, finding of their liability to confiscation and APC's liability to penalty u/s 112(a) is also not sustainable. In the circumstances, we set aside the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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