TMI Blog2009 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... g applicable depreciation in value and applying the correct rate of duty. After clearance of the impugned goods, they claimed refund of the excess duty of Rs. 15,01,762/- paid by them on account of denial of depreciation and adoption of wrong rate of duty by the authorities. The original authority rejected their claim. The Commissioner (Appeals) sustained the order of the original authority. Held that- we find that the lower authorities wrongly assessed the impugned capital goods on their de-bonding at the value and rate of duty in force at the time of their procurement instead of assessing duty with reference to the depreciated value and the rate of duty in force at the time of filing of bill of entry for ex-bond clearance of the capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. After clearance of the impugned goods, they claimed refund of the excess duty of Rs. 15,01,762/- paid by them on account of denial of depreciation and adoption of wrong rate of duty by the authorities. The original authority rejected their claim. The claim by the appellant that the CBEC Circular No. 14/2004-Cus., dated 13-2-2004 had clarified that the notifications dated 5-5-2008 replacing the erstwhile Notifications No. 52/2003-Cus., and No. 22/2003-C.E., both dated 31-3-2003 did not have retrospective effect and therefore the capital goods had to be assessed at the depreciated value irrespective of their failure to achieve Net Foreign Earning (NFE) prescribed was rejected by the original authority. Vide the impugned order, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em at the time of de-bonding the capital goods. In the grounds raised in support of the claim that the excess duty was due to be refunded, they relied on the CBEC circular No. 12/2008-Cus., dated 24-7-2008 and the Notifications No. 60/2008-Cus. and No. 26/2008-C.E., in both of which, for the first time, a nexus has been created between allowance of depreciation and positive NFE achieved by the EOU. These provisions were respectively applied by the authorities to deny depreciation to the appellants. They relied on the decision of the Tribunal in CC CE, Vadodara v. Solitaire Machine Tools P. Ltd. [2003 (152) E.L.T. 384 (Tri. Mum.)] wherein it was held that export obligation had no nexus with duty liability. This decision has not been over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of failure to achieve the said positive NFE, the depreciation shall be allowed on the value of capital goods in the same proportion as the achieved portion of NFE" in both the notifications. 4. As the relevant provisions in force at the time of de-bonding of the impugned goods mandated that the de-bonding of capital goods may be allowed on payment of duty on the depreciated value thereof and that the rate in force on the date of de-bonding of clearance, the impugned goods had to be assessed in accordance with these provisions contained in the Notifications No. 52/2003-Cus. and No. 22/2003-C.E. The lower authorities have wrongly assessed and recovered duty payable on the capital goods when they had been procured. This position has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he EOU Notifications in force at the time of filing of bill of entry for ex-bond clearance of impugned capital goods. We also find that in the Solitaire Machine Tools case (supra) cited by the appellants, Tribunal had held as follows:- A perusal of Notification No. 13/81-Cus. and the EOU provisions make it clear that duty liability upon debonding is no way connected to discharge of export obligation. It is clear from the notification that under the EOU scheme, imported goods were given exemption from duty as long as they were used for production of export goods. Thereafter, upon debonding the goods are treated as imported goods and subjected to duty as applicable to other import goods. That the original import was under an export obligati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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