9911796707
TMI Blog2009 (9) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices defaulting payment for the exports, the EOU opted to exit the scheme. The capital goods procured under the EOU scheme were de-bonded under Bill of Entry dated 27-11-2007 and assessed to applicable customs duty. The impugned goods were assessed to duty on their value and at the rate at the time of procurement without allowing 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 claim by the appellant that the CBEC Circular No. 14/2004-Cus., dated 13-2-2004 had clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the operations as their client failed to pay for the services rendered. They exited the scheme after paying the duty assessed on the capital goods imported under the EOU scheme on their de-bonding. Vide the impugned order, the Commissioner (Appeals) had wrongly sustained the order of the original authority rejecting the claim for refund of excess duty to the tune of Rs.15,01,762/- paid by them 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be", with "such clearance or debonding of capital goods may be allowed on payment of duty on the depreciated value thereof and at the rate in force on the date of debonding or clearance, as the case may be, if the unit has fulfilled the positive NFE criteria taking into consideration the depreciation allowable on the capital goods at the time of clearance or debonding. In case 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 goods. The appellants are entitled to refund of the excess duty paid when the liability is computed in terms of the 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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