TMI Blog2007 (2) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... s valued at Rs. 75,48,12,914/- without payment of duty. The goods were brought to the private bonded warehouse. The goods were installed in the premises. The appellants manufactured and exported certain goods. However, on 2-9-2004, they requested the Development Commissioner to debond the 100% EOU and avail EPCG scheme. When there application for debonding was pending, the Customs Department conducted certain investigations. Statements of several persons were obtained. On the basis of the investigations, Show Cause Notice dated 14-3-2005 was issued to demand the duty foregone on the imported machinery and to confiscate them under the Section 111(o) of the Customs Act, 1962 on the ground that the capital goods have not been installed within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) The demand of duty in respect of the warehoused goods can be made only under Section 72 of the Customs Act and not in terms of any Notification. Even under the Notification, the duty if at all can be demanded only after the expiry of the period of 5 years indicated in the Notification. (v) The appellants are entitled for the benefit of another Notification No. 21/2002-Cus. dated 1-3-2002. All the 21 items of the machinery imported by the appellants have been certified to be required for the implementation of the Non-ODS Technology by the Ministry of Environment and Forest. Therefore, assuming but not admitting that the appellants would not be entitled to exemption Notification under 53/97-Cus. and 52/03-Cus., even then the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, 12 of them have been installed and the dispute is only with reference to the 9 machineries. In respect of the disputed 9 items, the learned advocate produced a tabular statement indicating that the disputed items had actually been installed. (x) The cross-examination of the Chartered Engineer has conclusively established that his report dated 18-10-2004 does not support the department s case. The Chartered Engineer during the cross-examination has admitted that the machines could have been installed earlier and later on kept apart for maintenance and relocation. (xi) The department requisitioned the service of another expert Shri Satheesh for obtaining his opinion on the status of the machinery installed. The Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, the appellants could not have manufactured the goods meant for export. Even though the department called for the services of another export Shri Satish, the appellant s request for his cross-examination was denied. It is also seen that when the Department conducted investigations, the appellant s request for debonding was pending with the Development Commissioner. The appellants also have made a strong case that they are entitled for the benefit of exemption under alternative Notification No. 23/98-Cus., dated 2-6-1998, as they fulfill all the conditions of the said Notification. The necessary certificate from the Ministry of Environment and Forest had also been obtained. The jurisdictional Asst. Commissioner has also assessed the B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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