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2019 (11) TMI 389 - AT - Customs100% EOU - Concessional rate of duty - removal of goods in contravention of Section 72(1)(a) and Section 72(1) (d) of the Customs Act, 1962 and without the permission of the Development Commissioner SEEPZ, Mumbai and without execution of the Bond - benefit of N/N. 52/2003-Customs dated 31.03.2003 - whether the appellants were right in clearing the lathes imported vide Notification No.53/97-Cus. Dated 03.06.97 to the domestic tariff area without permission of the Development Commissioner on the grounds that they were surplus in terms of Para 6.16 of the Import Export Policy? - rate of depreciation to be applied in terms of the Notification No.57/2003-Cus dated 31.03.2003 or in terms of the Exim Policy? HELD THAT:- The Appellants have cleared the goods to DTA or EPCG holders during the period August to September 2003. During this period notification No.53/97 was not in currency. Notification No.52/2003 was only operational. Therefore the same requires to be considered. This notification does not contain any condition 5 or 5a as in the case of notification 53/97 as per which the unit required to take permission from the Development Commissioner and the Assistant Commissioner as the case may be. It is not the case of the department that the Appellant has not fulfilled the export obligation in terms of the Exim Policy. This claim of the Appellant is not controverted by the department. Therefore, the Appellants are entitled to clear the used capital goods in terms of the policy as well as the customs notification. In terms of Notification 52/2003, there is no provision for obtaining permission. Even if such a provision exist in the policy or custom notifications , it would not be the intent of the same to deny a substantial right of the appellants citing procedural infractions like non obtaining a permission or non filing of a Bill of Entry - thus, the Appellants submission that non obtaining of the permission does not take away the applicability of notification allowing a concessional rate of duty, is acceptable. Rate of depreciation - HELD THAT:- The Appellants need to apply the depreciation in terms of notification No.52/2003 which was in force at the time of clearances - For this reason, the matter requires to go back to the original authority for computing the applicable duty after allowing the applicable rate of depreciation in terms of notification No.52/2003. The appeals are partly allowed by way of remand to the original authority to arrive at duty payable by the appellants after extending the benefit of concessional rate of duty under notification 52/2003 and the rates of depreciation contained therein - penalties set aside.
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