9911796707
TMI Blog2025 (2) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... S Indonesia, without physical removal can be treated as deemed debonding / removal of the goods from the EOU on which duty has to be paid? - HELD THAT:- The ownership of the capital goods is not a criterion to avail duty exemption on imports on the said goods. If the appellant could have imported the capital goods on loan basis and still enjoyed the concession there is nothing in the Customs Act or subordinate provisions which require him to pay duty just because he sold the capital goods to the buyer of his products, without physically removing the goods from the Unit. Further sale would not amount to removal of goods / debonding unless such a provision is made in law. A deeming provision should be express and cannot be assumed. No such d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, no demand survives. Extended period of Limitation - penalty - HELD THAT:- The Central Excise authorities had duly verified and found correct the duty payable by the Appellant while exiting the EOU Scheme and a 'No Objection Certificate' granted. Hence it is deemed that the department was aware of the transaction, unless they had shown otherwise by way of fraud etc, which is not the case here. Hence the extended period of limitation under Section 28(4) of Customs Act, 1962 could not have been invoked nor can the goods be held liable for confiscation. No penalty could be imposed on the Appellant. Conclusion - i) The ownership of the capital goods is not a criterion to avail duty exemption on imports," and "sale would not amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equipments for two wheelers for M/s. PT TVS Motor Company, Indonesia (TVS Indonesia). The appellant during the month of March 2008, invoiced the moulds to TVS Indonesia for USD 1,91,360, they also paid an amount of Rs.2,92,192/- as VAT towards sale of the said moulds and dies considering the same as outright sale. However, the moulds remained in the factory premises of the appellant for further use in manufacture without being physically exported. The department alleged that the said transaction is a concluded domestic sale (second sale) of imported goods within India as per the Sale of Goods Act, 1930 and hence amounted to domestic clearance of capital goods / debonding of capital goods for sale in the name of TVS Indonesia. Hence after d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under; b) An EOU / EHTP / STP / BTP unit may import and /or procure, from DTA or bonded warehouses in DTA / international exhibition held in India, without payment of duty, all types of goods, including capital goods, required for its activities, provided they are not vprohibited items of import in the ITC (HS). Any permission required for import under any other law shall be applicable. Units shall also be permitted to import goods including capital goods required for approved activity, free of cost or on loan / lease from clients. Import of capital goods will be on a self certification basis. Goods imported by a unit shall be with actual user condition and shall be utilized for export production. (emphasis added) Subsequent FTPs hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case there is no shifting of the goods nor is there a deeming provision for sale or change of title to amount to removal, accordingly, sale of capital goods without physical removal from the EOU cannot be treated as deemed removal of the goods. 4.3) It has been held in the impugned order that the Appellant has violated para 4 of the Notification No. 52/2003 Cus dated 31.03.2003. Paragraph 4 of the Notification reads as under: "Without prejudice to any other provision contained in this notification, the said officer may, subject to such conditions and limitations as he may deem fit to impose under the circumstances of the case for the proper safeguard of revenue interest and also subject to such permission of the Development Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the EOU Scheme by the Development Commissioner. The Central Excise authorities had duly verified and found correct the duty payable by the Appellant while exiting the EOU Scheme and a 'No Objection Certificate' granted. Hence it is deemed that the department was aware of the transaction, unless they had shown otherwise by way of fraud etc, which is not the case here. Hence the extended period of limitation under Section 28(4) of Customs Act, 1962 could not have been invoked nor can the goods be held liable for confiscation. No penalty could be imposed on the Appellant. 5. In the facts and circumstances as discussed above the demand fails on merits and the impugned order is hence set aside. The appellant is eligible for consequential refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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