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2015 (12) TMI 792 - AT - Customs100% EOU - shortage of goods while shifting goods in the new unit Imposition of penalty - Non production of the documentary evidence for such shifting and the presence of the goods in the new unit - Held that:- Revenue has not been able to rebut the findings given by the adjudicating authority as regards the malafide of the assessee. Their only case is that inasmuch the imported duty free goods were not available, it has to be held that there was malafide on their part, requiring higher imposition of penalty. - adjudicating authority has kept in view various factors and has come to a clear finding on absence of malafide on the part of the assessee. Admittedly the assessee has been able to establish the transfer of the item from one unit to their new premises to the extent of around 94%. The balance 6%, for which they were not able to show any documentary evidence was some minor items and cannot be held to be attributable to any malafide. As such we fully agree with the Commissioner that this act does not call for higher imposition of penalty. Commissioner has observed that the assessee has not been able to establish proof of having utilized the goods for the intended purpose and therefore the question of allowing depreciation on such bonded goods does not arise. - For the period from 2001 to 2005, the same were being used by the appellant and they would be in a position to prove it. If that be so, the duty required to be paid by the respondent should have been calculated on the depreciated value. Inasmuch as no such proof stands produced before us, we think it fit to remand the matter to Commissioner for entertaining the said plea of the assessee - Matter remanded back - Appeal disposed of.
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