TMI Blog2008 (2) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... Vice-President and Shri A.K. Srivastava, Member (T) [Order per : Jyoti Balasundaram, Vice-President]. - M/s. Profitex Pvt. Ltd. (hereinafter referred to as the assessees) were granted letter of permission dated 10-4-1996 for establishing a new undertaking at Khopoli, Raigad Dist., Maharashtra, for manufacture of HDPE/PP woven fabrics, nets and doormats subject to fulfilment of certain conditions. They imported capital goods for the project, which goods were exempt from payment of excise duty in terms of notification in force, subject to the fulfilment of conditions specified therein and the exemption was available only if indigenous capital goods, components, raw materials etc. were exempt from levy of excise duty in terms of the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 281 (S.C.). The Tribunal directed re-determination of rate of duty applicable on the capital goods and raw material, but set aside confiscation of the goods. The present impugned order passed after remand is one by which the Commissioner holds that the assessees are required to pay duty on the depreciated value of the capital goods, but holds that the depreciated value is to be applied only up to the date of in principle de-bonding, while it is the contention of the assessees that the depreciated value is to be taken into account upto the date of clearance of the goods and further, that, if the depreciated value is applicable upto the date of clearance, no duty would be payable and, therefore, the entire demand on capital goods is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which such goods have come into use for commercial production, upto the date of de-bonding or clearance, as the case may be. In this case, the capital goods", were received prior to the date of commencement of commercial production. The starting point for allowing depreciation has been taken correctly, viz, from the date of commencement of commercial production and the appellants have no quarrel on this score. As regards the date till which depreciated value is to be allowed, the Commissioner has taken the date of in-principle de-bonding as the date upto which the depreciated value is to be computed, on the basis of CBEC Circular No. 27/98-Cus., dated 21-4-1998, para 4 whereof provides that the period of depreciation would be count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act or any notification or order issued under such rule or regulation, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not - (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or (d) affect any pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on capital goods has been set-aside and since, although the demand on unused raw material is held to be justified for the reason that such demand has not been challenged by the assessees, still the fact remains that unless the ingredients of Section 114A are made out by the Revenue, penalty cannot be imposed even when the demand on unused raw material is sustained. Section 114A requires non-levy or short-levy of duty due to collusion, wilful mis-statement or suppression of facts. The Revenue has not made out a case that the assessee company either colluded or wilfully mis-stated or suppressed any facts in relation to the unused raw material. Therefore, the ingredients of Section 114A are not attracted against the assessee company so as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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