TMI Blog2008 (2) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... [Order : S. L. Peeran, Member (J)].- This appeal arises from OIA No 167/06 dated 30.11.06 by which the Commissioner (appeals) has modified the OIO No 30/06 Cus dated 30.6.06 passed by the Joint Commissioner of Customs by granting the benefit of depreciation and also set aside the penalty. He has given a direction to the Original Authority to the effect that the demand of duty shall be proportionate to the unfulfilled portion of the export obligation. He has further noted that in respect of goods other than capital goods the demand shall be limited to the quantities which have been proved to be unutilized in the export production. He has held that the assessee shall be liable to pay the duty demanded along with interest for the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the statistics of the exports done by the appellants. I also find that the appellants have in principle permitted to debond the unit from EOU scheme. That being the case, the question of demanding duty foregone on total goods used in the manufacture of export goods is not legally tenable. If at all duty is to be paid the same is to be calculated proportionate to the unfulfilled export obligation. Another point to be decided is regarding allowing of depreciation. I find that since the capital goods have been manifestly used in production of export products and there is no allegation to the contrary, allowing depreciation is a natural benefit which will follow during the debonding of the capital goods. In this case, it is true that the uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformance. It is stated that if the same is allowed it will set a wrong preceding and all the importers will claim the depreciation benefit and debond the goods with partial fulfillment of export obligation which may be anywhere from 1% to 99%. Learned SDR took us through the grounds and submitted that as the legal undertaking has not been fulfilled and as the full export obligation has not been fulfilled, the assessee is not eligible for the benefit as granted by the Commissioner. 3. Learned counsel submits that the Commissioner has analyzed the condition 3 (b) of the Notification and has also applied the ruling of the Tribunal rendered in the case of Natural Stone Exports case (2006 (198) ELT 440 (Tri-Bang). He submits that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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