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TMI Blog2020 (3) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 22/2003-CE dated 31.03.2003 alleging that appellant is liable to pay duty at the rate prevailing at the time of import/procurement of the goods, whereas appellant paid the duty at the rate prevailing at the time of debonding of the unit. 2. Heard the parties. 3. The said issue has been dealt with by this Tribunal in their own case in Appeal No. C/1412/2011 wherein this Tribunal has held as under:- "8. Heard the parties. 9. From the arguments advanced by both sides, the following issues emerge: 1) whether appellant is liable to pay duty from the date of demanding of their unit on the rate of duty prevailing on such date or at the rate of duty prevailing at the time of import? 2) whether the appellant is liable to pay inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch extended period not exceeding five years as the said officer may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow; (ii) in the case of goods other than capital goods, such goods as are not proved to the satisfaction of the said 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Act, 1944, from the date of procurement of the said goods till the payment of such duty. Clause 8(i) such clearance or debonding of capital goods may be allowed on payment of an amount equal to the excise 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 allowed on the value of capital goods in the same proportion as the achieved portion of NFE. The depreciation shall be allowed in straight line method as specified below, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 the demand of duty of Rs. 74,09,538/-, the appellant is liable to pay duty at the rate of duty prevailing at the time of debonding of the unit. The duty is to be calculated accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 25-11-2004 reads as under : "In exercise of the powers conferred by sub-section (2) of section 61 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as said Act) and in supersession of the notification of Central Board of Excise and Customs, No. 67/95 (N.T.) Customs, dated the 1st November, 1995 vide number S.O. 870 (E), dated the 1st November, 1995, the Central Board of Excise and Customs, being satisfied that it is necessary so to do in the public interest hereby exempts interest accrued on the customs duties payable on the capital goods, components and spares of capital goods and material handling equipments (forklifts, overhead cranes, mobile cranes, crawler cranes, hoists and stackers), office equipments, captive p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the above reproduced notification that Central Govt. has exempted the interest accrued on the customs duty payable by an export oriented unit. We also find that provisions of Section 61 clearly exclude the liability to pay interest for a period of 5 years from the date of bonding. We find that the decisions of this Bench in the case of Stelfast India P. Ltd. squarely covers the issue in favour of the appellant. We may reproduce the said ratio: "On a careful consideration, we notice that the notification No. 67/95-Cus. dated 1-11- 1995 exempts interest accrued on the Customs duty payable on the warehoused goods under Chapter IX of the Customs Act. Both the authorities have failed to see this provision of law and, therefore, the confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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