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TMI Blog2004 (11) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be adjusted against the Customs duty liability since the duty is now upheld in respect of entire raw material imported by them. We agree with the learned SDR that no depreciation has to be granted to the Appellants while levying the duty on the capital goods since the same have not been used for the purpose they were procured free of duty i.e. manufacture of goods in a 100% E.O.U. for the purpose of export. We, therefore, uphold the demand of Central Excise duty. We also uphold the demand of Customs duty subject to the adjustment of duty already paid by the Appellants on the removal of raw material as such and on the removal of finished goods manufactured out of the raw material imported by them. Penalty is also imposable on the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of the finished goods which had been removed by them in Domestic Tariff Area on payment of applicable duty under permission granted by the Development Commissioner; that the remaining raw material being waste and scrap has been lying in the Appellants unit for destruction; that the Commissioner under the impugned Order has confirmed the demand and imposed penalty on the ground that they had not exported the goods and had not achieved the N.F.E.P. 3. The learned Advocate further submitted that already 54.80 M.T. imported raw material had been cleared in D.T.A. on payment of duty and as such no Customs duty can be demanded second time on the ground that they had failed to maintain the Value Addition stipulated in Letter of Permission; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the manufacture of the finished goods and as such no duty is chargeable thereon. Regarding duty liability in respect of capital goods procured indigenously, the learned Advocate contended that as the capital goods were installed on 27-1-1998 and remained in deemed use up to 27-5-2002 (when their unit was de-bonded) the benefit of depreciation of capital goods has to be extended to them before charging Central Excise duty. He relied upon the decision of the tribunal in the case of Jindal Polyester Ltd. v. CCE, 2001 (129) E.L.T. 785 (Tribunal). Finally he submitted that no penalty is imposable as there was no mala fide intention on their part in not fulfilling the export obligation; that they could not fulfil the export obligation on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly, she submitted that as the Appellants have not fulfilled the export obligation and had obtained the goods without payment of duty, penalty is imposable. 5. We have considered the submissions of both the sides. The undisputed facts are that the Appellants were granted letter of permission for manufacture and export of finished goods and they had accepted the terms and conditions and executed legal agreement also in terms of EXIM Policy. It is also not disputed that they have not exported any goods out of the raw material imported by them or by suing the capital goods procured indigenously without payment of duty. In view of these undisputed facts the Appellants are liable to discharge the duty liability, both in respect of goods imported ..... X X X X Extracts X X X X X X X X Extracts X X X X
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