TMI Blog2015 (10) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... ification - Section 142 inserted by Act No. 23 of 2004 holds that successor of defaulter would also be held liable; M/s Vampex are also liable to pay the dues – Depreciation rate charged by the authority is not to be interfered with – Appeal dismissed partly in favour of the Revenue. - Appeal No. C/163/2007 and C/224/2007-Cus (BR) - FINAL ORDER NO. 52673-52674/2015 - Dated:- 24-8-2015 - R K Singh, Member (T) And Sulekha Beevi C S, Member (J) For the Appellant : Smt Suchitra Sharma, DR For the Respondent : None ORDER Per Sulekha Beevi CS The Appeal No. 163/2007 is filed by Revenue challenging the impugned order whereas in appeal No. 224/2007 the assessee is in appeal challenging the very same order. For convenienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and therefore the hearing notice was affixed on the gate of factory in the presence of Panchnama. On 11.4.2013 this Tribunal issued miscellaneous order directing the registry to get information from the High Court of Madhya Pradesh as to what is the status of the case pending before the High Court Reply was received stating that the same is pending before the High Court. Thereafter the case has come up for Regular Hearing several times has been adjourned and notices repeated to the assessee. The matter thus came up on 5.8.2015 also when none appeared for the assessee and the learned DR brought to our notice the interim order passed by the Hon'ble High Court on 08.4.2015 and also order passed on 13.5.2015. 3. On perusal of records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery (Automatic Cone Winder) in 1997. Being a 100% EOU they were entitled for duty free import of capital goods under Notification No. 53/97-Cus dated 03.06.1997. This notification imposed conditions for availing duty exemption. Sub clause (a) and (b) of Clause 5 of the said notification states that such capital goods shall not be removed to any other place without permission from Department and such permission can be given on payment of Customs duty leviable on the depreciated value. The said Machine was purchased by assessee by availing a loan from M/s Tata Finance Ltd. (TFL) under a Hire Purchase Agreement and the goods were used by assessee upto the year 2000. The assessee defaulted the installments, M/s TFL approached Mumbai High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty payable from M/s Vamptex traders so that the ultimate burden of duty does not fall on them. It is also worth to mention that the show cause notices issued to M/s TFL and M/s Vamptex traders was confined only to imposition of penalty under Section 17 of Customs Act, 1962, whereas only the assessee was called upon to show cause as to why customs duty on the machine should not be demanded. 6. The assessee availed duty exemption under Notification No. 53/1997 dated 3.6.1997 and executed bond agreeing to abide by the conditions of the notification for exemption of duty, and on failure to pay the duty. As per these conditions the assessee has to seek permission from the development Commissioner before removal of the machine from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and M/s Vamptex Traders did not include proposals to levy duty but was confined to levy of penalty under 117 of the Customs Act, 1962. The primary adjudicating authority vide order dated 31.8.2006 has dropped levy of penalty against all the three noticees, observing that it would not be proper to impose penalty as the machine was removed by order of court. The Department has not challenged these findings and the same has reached finality. The adjudicating authority confirmed the duty demand against the assessee. 9. The foremost contention raised by the assessee is that as the machine was purchased under a Hire Purchase Agreement, they are not the owner of the machine. M/s TFL being the Financier is the owner and is liable to pay the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Noticee No. 2 and 3, regarding sale of the said suit machinery, Noticee No. 2 made it very clear at clause-I which follows as herein under:- The machinery namely - ONE MURATA NO.7 MACH....CONER AUTOMATIC CONEWINDER (TYPE MAGAZINE), more particularly described in the schedule written herein under shall be put up for sale on as is where is basis and the sale is subject to the payment by the purchaser of all outstanding duties (inclusive of Customs duty, if applicable) taxes and liabilities attached to the said machineries and as per clause 13 the purchaser shall be liable to pay all Central State, Municipal Other Taxes, duties, levies, cesses, all outgoing etc. as may be applicable in respect of the said machinery from any point to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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