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2023 (8) TMI 1266 - CESTAT KOLKATA100% EOU - Remission of duty - applicability of Rule 21 of CER on plant and machinery and raw materials which were lost and damaged in fire - HELD THAT:- It is seen from the records that in case of the capital goods, the Appellant has procured them between 2002 to 2007 as per the Bill of Entry details given by them at Page 23 to 25 of the Appeal Paper Book. Since the Department has also made use of this detailed statement to arrive at the demand of Customs duty on such imported capital goods, it clarifies that the Department does not dispute that these capital goods were procured about 3 to 10 years prior to the fire accident. Therefore, admittedly these capital goods were being properly used in the factory premises for production of the finished goods which were exported by the EOU. As per the Notification No. 52/2003, if the Capital goods are not installed and used within a period of one year from the date of import, the same would amount to contravening the conditions set up under this Notification. As per the factual matrix discussed above, the capital goods have been used for more than three to ten years. Hence, the Department cannot claim that the conditions of Notification No. 52/2003 were not fulfilled. Further it is seen that in case of Laxai Avanti Live Sciences Pvt. Ltd. Vs. CC., C. Ex & S.T. Hyderabad [2017 (3) TMI 451 - CESTAT HYDERABAD], the Tribunal has held As the goods is not lost or destroyed, the assessee made a request for relinquishment of the title to the goods with the intention of abandoning the same. By such abandonment and relinquishment, the title in the imported goods is divested and the title vests with the Department. The Tribunal on a proper consideration of the facts keeping in mind the legal principles involved has rightly set aside the order passed by the original authority as well as the Appellate Commissioner granting remission of duty to the assessee. It is in accordance with law. Thus, it has been held that if the raw materials/capital goods were destroyed due to accidents which are beyond the control of the assesse, remission is required to be granted. Accordingly, the impugned OIOs are not legally sustainable - appeal allowed.
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