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2020 (3) TMI 272 - AT - Customs100% EOU - export of any finished goods not made, thereby failed to achieve positive Net Foreign Earnings (NFE) - debonding of unit - Advance DTA Sale - benefit of N/N. 52/2003-CUS dated 31.03.2003 - on which date duty is payable by the appellant and at what rate? Whether appellant is liable to pay duty from the date of demanding of their unit on the rate of duty prevailing on such date or at the rate of duty prevailing at the time of import? - HELD THAT:- As per Section 15 (1)(b) of the act, the duty is payable at the time when goods were actually removed from warehouse under Section 68 of the Act. Admittedly, in the case in hand, the appellant is a 100% EOU and having letter of permission to work as 100% EOU. As the appellant could not achieve positive NEP, the appellant applied for demanding and at the time of demanding filed bills of entry which are not in dispute. Therefore, in terms of Section 15 of the Act, the appellant is liable to pay duty at the rate prevailing at the time of debonding. This is also in consonance of Clause 8(3A)/ 8(4A) of the notification which provides that the appellant/ assessee is liable to pay duty at the rate in force on the date of debonding if unit failed to achieve said positive NFP. Therefore, with regard to the demand of duty of ₹ 74,09,538/-, the appellant is liable to pay duty at the rate of duty prevailing at the time of debonding of the unit. Indigenously procured capital goods in terms of Notification No. 22/2003-CE dated 31.03.2003 - HELD THAT:- The clause 8(i) of the notification clearly specifies that the duty is payable at the rate in force on the date of debonding. As per the said notification, the appellant is liable to pay duty at the rate in force on the date of debonding. Therefore, with regard to the demand of differential duty of ₹ 21,03,122/-, we hold that appellant is liable to pay duty at the rate of prevailing on the date of debonding. The duty is to be calculated accordingly. Whether the appellant is liable to pay interest for the intervening period or not? - HELD THAT:- In terms of Notification No. 132/2004-Cus (NT) dated 25.11.2004 the appellant are not liable to pay interest as held by this Tribunal in the case of BUSINESS PROCESS TECHNOLOGIES (I) PVT. LTD. VERSUS COMMR. OF CUS., BANGALORE [2009 (9) TMI 351 - CESTAT, BANGALORE] where in this Tribunal held that the Central Govt. has exempted the interest accrued on the customs duty payable by an export oriented unit. We also find that provisions of Section 61 clearly exclude the liability to pay interest for a period of 5 years from the date of bonding. Thus, for imported capital goods, the appellant is liable to pay duty at the rate of duty prevailing on the date of debonding - the appellant is liable to pay duty for indigenously procured capital goods at the rate of duty prevailing on the date of debonding - no interest is payable by the appellant. Appeal disposed off.
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