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TMI Blog2019 (11) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5 or 5a as in the case of notification 53/97 as per which the unit required to take permission from the Development Commissioner and the Assistant Commissioner as the case may be. It is not the case of the department that the Appellant has not fulfilled the export obligation in terms of the Exim Policy. This claim of the Appellant is not controverted by the department. Therefore, the Appellants are entitled to clear the used capital goods in terms of the policy as well as the customs notification. In terms of Notification 52/2003, there is no provision for obtaining permission. Even if such a provision exist in the policy or custom notifications , it would not be the intent of the same to deny a substantial right of the appellants citing procedural infractions like non obtaining a permission or non filing of a Bill of Entry - thus, the Appellants submission that non obtaining of the permission does not take away the applicability of notification allowing a concessional rate of duty, is acceptable. Rate of depreciation - HELD THAT:- The Appellants need to apply the depreciation in terms of notification No.52/2003 which was in force at the time of clearances - For this reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants submitted a letter, dated 22.4.2003, on 29.5.2003; as per EXIM Policy and relevant Customs Notifications, the depreciation rates were unchanged for the block 1997 2002 and 2002 2007; depreciation rates allowed as mentioned therein in the notifications. He further submits that in terms of Para 6.16, permission is required only when duty is not required to be paid; as the appellant cleared the surplus/absolute goods with the payment of appropriate duty, no permission of Development Commissioner was required; When the appropriate duty is paid and invoice under Rule 11 of CER, 2002 is made the Ex Bond Bill of Entry before the clearance is not required to be submitted He relies upon : (i). Commissioner of Trade TAX, U.P V/s M/s. Kajaria Ceramics Ltd 2005(191) ELT 20 (S.C.) (ii). IFGL Refractories Ltd V/s Jt. DGFT 2001(132) ELT 545(Cal.) (it was held that when the Law and Policy offer various alternatives benefits it is the assessee option to chose the one which give him maximum advantage. (iii). STP Limited V/s Collector of Central Excise, Patna 1998(97) ELT. 16(SC) (in case of any doubt in the construction of any provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied 16% for the first year, 12% for the second and the third year and 10% for the fourth year on the basis of the Exim Policy 2002-07 in force at that time; rates of depreciation as per Notification were not aligned with the Exim Policy 2002-07 and departmental authorities were bound by the Board instructions; adjudicating Authority has rightly opined that the EXIM policy only fixes broad terms/guidelines for different benefits of duties of Customs and Central Excise to EOU, however, the actual duty benefits are given by the concerned Notifications issued by the CBEC; CBEC has also issued a Circular No.14/2004-Cus dated 13.02.2004 on this issue. He relies upon CESTAT s Final Order in the case of M/s. Dicitex D cor (P) Ltd. Vs Commissioner of Customs (Import) Nhava Sheva in case of Appeal No.C/399/2012. 4. Heard both sides and perused the records of the case. Brief issue that requires decision in the instant case is as to whether the appellants were right in clearing the lathes imported vide Notification No.53/97-Cus. Dated 03.06.97 to the domestic tariff area without permission of the Development Commissioner on the grounds that they were surplus in terms of Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment Commissioner and the Assistant Commissioner as the case may be. It is not the case of the department that the Appellant has not fulfilled the export obligation in terms of the Exim Policy. This claim of the Appellant is not controverted by the department. Therefore we find that the Appellants are entitled to clear the used capital goods in terms of the policy as well as the customs notification. In terms of Notification 52/2003, there is no provision for obtaining permission. Even if such a provision exist in the policy or custom notifications , it would not be the intent of the same to deny a substantial right of the appellants citing procedural infractions like non obtaining a permission or non filing of a Bill of Entry. We find that as contended by the Appellants, Tribunal in their own case have set aside penalty imposed for non obtaining such permission in respect of some other proceedings. We find that Tribunal in 2007 (211) E.L.T. 392 (Tri. - Mumbai) held that The challenge in the present appeal is to personal penalty of ₹ 2,018/- imposed under Rule 25 of Central Excise Rules, 2002 on the appellants, who is 100% EOU on the ground that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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