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TMI Blog2005 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... the depreciation has to be given up to the date of payment of duty and not up to the date of de-bonding. It is noted that in circumstances, which are beyond the control of the appellants, the penalty and RF is not imposable. The appellants have not made any deliberate attempt to avail the benefit of the Notifications wrongly and their bona fides have not been doubted. Hence, the confiscation, fine and penalty has to be set aside. Applying the ratio of the Tribunal's judgment cited by the learned Counsel, RF and penalty are set aside and the matter is remanded to the original authority to quantify the duty after granting them depreciation up to the point of payment of duty as held in the judgment cited by the learned Counsel. The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported duty free goods and also has procured indigenous goods without payment of C.E. Duty. As per the condition of Notification No. 196/94-Cus., dated 8-12-1994 and 10/95-C.E., dated 23-2-1995, they were required to fulfil the export obligation. Since there were no exports for the year 1997-1998 to 2000-2001, the proceedings were initiated against him. However they had exported from the year 1994 to 1997. But their contention is that they could not achieve export obligation due to (i) closing down of the unit since 1997 due to severe floods which had damaged the entire Processing Plant; (ii) Due to Hon'ble Supreme Court's ban on Aqua Culture unit, they could not continue the operation which affected their exports as projected earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. However, it has to be from the date of the unit having been permitted to be debonded by the Development Commissioner in terms of the judgment rendered by the Apex Court in the case of Kesoram Rayon v. Collector of Customs, Calcutta. She submitted that penalty is leviable for default committed by them in not fulfilling the terms of the conditions of the Advance Licence as held by the Apex Court in the case of Sheshank Sea Foods Pvt. Ltd. v. UOI - 1996 (88) E.L.T. 626 (S.C.); (ii) Sriram Mills v. UOI - 2000 (123) E.L.T. 448 (A.P.); (iii) Yuil Measures India Ltd. v. CC, New Delhi - 2000 (123) E.L.T. 996 (Tribunal); (iv) Nikhil Industries Pvt. Ltd. v. CCE, Jaipur - 2005 (180) E.L.T. 321 (Tri.-Del.). 5. The learned Counsel distinguishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation has to be calculated only up to the date of de-bonding. On our consideration, we find that this was the question, which was before the Bench in the case of CCE v. Solitaire Machine Tools P. Ltd., wherein the Tribunal, on due consideration of this very point, held that the depreciation has to be given up to the date of payment of duty and not up to the date of de-bonding. The same finding was recorded also in Khabros Steel (I) Ltd. The learned JCDR relied on Kesoram Rayon case. The Kesoram Rayon case deals with the rate of duty to be fixed on the de-bonding and not on the aspect pertaining to depreciation. Hence, the reliance on the Kesoram Rayon's case by the JCDR is misplaced. 7. In so far as the appellant's contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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