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TMI Blog2020 (3) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... A) of the notification which provides that the appellant/ assessee is liable to pay duty at the rate in force on the date of debonding if unit failed to achieve said positive NFP. Therefore, with regard to the demand of duty of ₹ 74,09,538/-, the appellant is liable to pay duty at the rate of duty prevailing at the time of debonding of the unit. Indigenously procured capital goods in terms of Notification No. 22/2003-CE dated 31.03.2003 - HELD THAT:- The clause 8(i) of the notification clearly specifies that the duty is payable at the rate in force on the date of debonding. As per the said notification, the appellant is liable to pay duty at the rate in force on the date of debonding. Therefore, with regard to the demand of differential duty of ₹ 21,03,122/-, we hold that appellant is liable to pay duty at the rate of prevailing on the date of debonding. The duty is to be calculated accordingly. Whether the appellant is liable to pay interest for the intervening period or not? - HELD THAT:- In terms of Notification No. 132/2004-Cus (NT) dated 25.11.2004 the appellant are not liable to pay interest as held by this Tribunal in the case of BUSINESS PROCESS TECHNOLOGI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for assessment on the value of raw materials mentioned in respective bills of entry for ware housing at the time of import and at the rates of duty in force at the time of debonding. The values as furnished by the appellant were accepted and the goods were assessed at the rate of duty prevailing on the date of filing of the Bills of Entry in terms of Para 4(b) of Notification No. 52/2003-Cus dated 31.03.2003 and duties were assessed accordingly. Thereafter, on re-examination of duty assessment, it was found that the raw material would be covered under said goods referred to in condition (3)(d) (ii) in para 1 of Notification No. 52/2003-Cus dated 31.03.2013 as amended. As per the said provision, in case of failure to achieve positive Net Foreign Exchange Earnings equal in amount to the portion of duty foregone at the time of import to account to the duty leviable on said goods for exemption contained in said Notification. The duty so payable shall bear the same provision as the unachieved portion of NFE along with interest from the date of importation till payment of such duty. Therefore, the duty worked out to be paid by the appellant is 5,33,51,674/- whereas the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to pay at the rate in force on the date of debonding or clearance for indigenously procured capital goods. Therefore, impugned order for demanding differential duty is not sustainable. 5. He further submits that as per Notification No. 132/2004-Cus (NT) dated 25.11.2004 no interest is payable by appellant being 100% export oriented unit (undertaking). 6. In support of his claim he relied on the following decisions: a) Business process Technologies (I) Pvt Ltd., Vs CC, Bangalore [2010 (249) ELT 248 (Tri-Bang)] b) Bombay Alloy Steel Industries Pvt Ltd., Vs UOI [1988 (38) ELT 262 (Bom)] c) Kiran Spinning Mills Vs Collector of Customs [1999 (113) ELT 753 (S.C)] d) Simplex Castings Ltd., Vs UOI [1998 (104) ELT 318 (A.P)] 7. On the other hand, the Learned AR submits that in terms of Notification No. 52/2003-Cus dated 31.03.2003 as amended, the appellant are liable to pay duty in terms of Clause 3 (d) (I) of the said Notification wherein the appellant are required to pay duty from the date of import. Therefore, the differential duty has rightly been demanded. He also submits that interest is also demanded correctly as per the said terms of the notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id officer to have been used in connection with the production or packaging of goods in accordance with SION for export out of India or cleared for home consumption within a period of three years from the date of import or procurement thereof or within such extended period as the said officer may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow: Provided that no such clearance or debonding of capital goods under the Export Promotion Capital goods Scheme of Chapter 5 of the Foreign Trade Policy shall be allowed if the unit has not fulfilled the positive NFE criteria at the time of clearance or debonding in terms of Para 6.18(d) of Foreign Trade Policy: Provided further that (a) Such clearance or debonding of capital goods may be allowed on payment of duty on the depreciated value thereof and at the rate in force on the date of debonding or clearance, as the case may be, if the unit has fulfilled the positive NFE criteria taking into consideration the depreciation allowable on the capital goods at the time of clearance or debonding. In case of failure to achieve the said positive NFE, the depreciation shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards. 12. As per Section 15 (1)(b) of the act, the duty is payable at the time when goods were actually removed from warehouse under Section 68 of the Act. Admittedly, in the case in hand, the appellant is a 100% EOU and having letter of permission to work as 100% EOU. As the appellant could not achieve positive NEP, the appellant applied for demanding and at the time of demanding filed bills of entry which are not in dispute. Therefore, in terms of Section 15 of the Act, the appellant is liable to pay duty at the rate prevailing at the time of debonding. This is also in consonance of Clause 8(3A)/ 8(4A) of the notification which provides that the appellant/ assessee is liable to pay duty at the rate in force on the date of debonding if unit failed to achieve said positive NFP. Therefore, with regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and stackers), office equipments, captive power plants including captive generating sets, spares of captive power plants and captive generating sets, tools, jigs, gauges, fixtures, moulds, dies instruments and accessories, (other than raw materials, components and consumables) authorised to be imported by an export oriented undertaking or an Electronic Hardware Technology (EHTP) unit or a Software Technology Park (STP) Unit and warehoused under Chapter IX of the said Act, at the time of clearance from Customs Bended Warehouses under section 68 of the said Customs Act. Explanation. - For the purposes of this notification, - (i) Electronic Hardware Technology Park (EHTP) unit means a unit established under and in accordance with the Electronic Hardware Technology Park Scheme notified by the Government of India in the Ministry of Commerce, vide, notification No. 5 (RE-95)/92-97, dated the 30 April, 1995 and approved by the Inter Ministerial Standing Committee; (ii) export oriented undertaking has the same meaning as assigned to hundred per cent export oriented undertaking in clause (ii) to the Explanation 2 to sub-section (1) of section 3 of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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