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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 ..... s namely CNC Lathe Machine in the year 2000 under the EOU scheme; the appellants removed capital goods to DTA and EPCG license holders, during August - September 2003, on payment of concessional rate of duty @5% under EPCG scheme. Revenue alleges that proper procedure, under Section 62 and 68 of the Customs Act, 1962, was not followed and goods were removed in contravention of Section 72(1)(a) and Section 72(1) (d) of the Customs Act, 1962 and without the permission of the Development Commissioner SEEPZ, Mumbai and without execution of the Bond; benefit of Notification No.52/2003-Customs dated 31.03.2003, is not available and duty ought to have been paid Customs Duty @ 25% CVD 16% SAD 4%; appellant did not file an Ex-bond Bill of Entry; but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision of a texturing statute, the same must be resolved in favour of the assessee). (iv). Reply given by Chief Commissioner , during in House Meeting organized by Customs and Central Excise, Pune Zone dated 23.03.2010. 3. Learned AR, for the department, submits that appellants imported capital goods namely CAN Lathe Machines vide Notification No.53/97- Cus. Dated 03.06.97, during the year 2000, when the EXIM policy 1997-2002 was in force; the goods were imported at concessional rate of duty in their capacity as an EOU unit and were ware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e read in isolation but in conjunction with the condition under which the goods were imported. 3.2. Learned AR further submits that as per Para 4(a) of the Notification. No.52/2003-Cus date 31.03.2003, the Appellant was entitled to uniform rate of depreciation @ 10% per year whereas the Appellant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 - Customs provides that sale into DTA can be made by the manufacturer himself subject to his recording each transaction in the records described by board/ Commissioner or their private records approved by Commissioner; further rule 17 of CER provides that EOU can clear the goods on payment of duty; therefore EOU's are not required to take permission from the Jurisdictional Customs/Central Excise Authorities for DTA sale of goods. The units may sell the goods on payment of duty as per the conditions and entitlement of Foreign Trade Policy. 5. The gist of the contention of the Appellants is that they are not required to take a permission from Development Commissioner as they have fulfilled the export obligation and as their capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 Rs. 2,018/- imposed under Rule 25 of Central Excise Rules, 2002 on the appellants, who is 100% EOU on the ground that they had cleared capital goods without specific permission by the Development Commissioner, SEEPZ or by the Jurisdictional Deputy Commissioner Central Excise. It is not disputed by both sides that due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... become obsolete only since the appellants have not put them to use. However, as we held that the obtaining of permission is only a procedural matter and hence do not come in the way of availing a substantial benefit, we are not going into the issue any further. We hold 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 reason we find that the matter requires to go back to the original authority for computing the applicable duty after allowing the applicable rate of depreciation in terms of notification No.52/2003. 8. In view of the above, the appeals are partly allowed by way of remand to the original authority to arrive at duty payable by the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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