Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2012 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (2) TMI 437 - AT - Central ExciseRate of duty - Debonding of duty - Held that:- appellant, a 100% EOU, had, at the time of debonding, achieved positive NFE and were eligible for migration to EPCG Scheme in terms of the provisions of Condition No. 8 of the Notification No. 22/2003-C.E. issued under Section 5A of Central Excise Act, 1944, and Condition No. 8 of Notification No. 52/2003-Cus. issued under Section 25(1) of Customs Act, 1962. In terms of the provisions of these Notifications, at the time of debonding the duty on the capital goods is payable on the depreciated value and at the rate in force on the date of clearance on debonding - a 100% EOU at the time of debonding can be allowed to migrate to EPCG Scheme provided it has positive NFE. However, while the rate of Customs duty chargeable on the capital goods imported under EPCG scheme has been prescribed under Notification No. 64/2008-Cus. issued under Section 25(1) of Customs Act, 1962 and the same along with the education cess is 3.09%, on Central Excise side, there is no such parallel notification issued under Section 5A of Central Excise Act, 1944, prescribing a similar concessional rate of duty in respect of capital goods supply under EPCG scheme. Prima facie in absence of such an Excise Exemption Notification, the EPCG rate prescribed under Customs Notification No. 64/2008-Cus. dated 9-5-2008 cannot be treated as concessional rate of Excise duty chargeable on indigenously manufactured goods at the time of their debonding by a 100% EOU migrating to EPCG Scheme, as this is an omission on the part of the Government, which cannot be remedied by the Courts or the Tribunal. In view of this, we are of view that this is not the case for total waiver - Conditional stay granted.
|