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2020 (3) TMI 272

..... 003 - on which date duty is payable by the appellant and at what rate? Whether appellant is liable to pay duty from the date of demanding of their unit on the rate of duty prevailing on such date or at the rate of duty prevailing at the time of import? - HELD THAT:- As per Section 15 (1)(b) of the act, the duty is payable at the time when goods were actually removed from warehouse under Section 68 of the Act. Admittedly, in the case in hand, the appellant is a 100% EOU and having letter of permission to work as 100% EOU. As the appellant could not achieve positive NEP, the appellant applied for demanding and at the time of demanding filed bills of entry which are not in dispute. Therefore, in terms of Section 15 of the Act, the appellant is liable to pay duty at the rate prevailing at the time of debonding. This is also in consonance of Clause 8(3A)/ 8(4A) of the notification which provides that the appellant/ assessee is liable to pay duty at the rate in force on the date of debonding if unit failed to achieve said positive NFP. Therefore, with regard to the demand of duty of ₹ 74,09,538/-, the appellant is liable to pay duty at the rate of duty prevailing at the time of deb .....

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..... the appellant approached to the Development Commissioner for debonding of their unit along with In Principal Permission dated 08.01.2010. As per clause (e) Para 6.18 of Foreign Trade Policy, 2009-14, the appellant shall assess duty liability arising out of debonding and submit details of such assessment to the jurisdictional Customs and Central Excise authorities. Accordingly, the appellant submitted the details of assessment of duty vide letter dated 11.01.2010 and on 23.01.2010, the Revenue intimated the total dues payable by the appellant on debonding. At the time of debonding the appellant filed 10 bills of entry on 24.02.2010 for imported raw material which were imported by availing duty exemption in terms of Notification No. 52/2003-Cus dated 31.03.2003 as amended. The appellant proposed for assessment on the value of raw materials mentioned in respective bills of entry for ware housing at the time of import and at the rates of duty in force at the time of debonding. The values as furnished by the appellant were accepted and the goods were assessed at the rate of duty prevailing on the date of filing of the Bills of Entry in terms of Para 4(b) of Notification No. 52/2003-Cus .....

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..... refore, a show cause notice dated 27.04.2010 was issued to the appellant to demand differential duty as mentioned herein above along with interest from the appellant. The matter was adjudicated, demand of duty was confirmed against the said order. Appellant is before us. 3. The Learned Counsel for the appellant submits that facts of the case are not in dispute. The only dispute is that on which date duty is payable by the appellant and at what rate. 4. He submits that in terms of Notification No. 52/2003-Cus dated 31.03.2003 as amended the appellant was liable to pay duty in terms of clause 8(4) proviso at the rate in force on the date of debonding and they have paid duty accordingly. Further, in terms of Notification No. 52/2003-CE dated 31.03.2003 as amended. Clause 8, they are liable to pay at the rate in force on the date of debonding or clearance for indigenously procured capital goods. Therefore, impugned order for demanding differential duty is not sustainable. 5. He further submits that as per Notification No. 132/2004-Cus (NT) dated 25.11.2004 no interest is payable by appellant being 100% export oriented unit (undertaking). 6. In support of his claim he relied on the foll .....

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..... Revenue) issued under section 28AB of the said Customs Act on the said duty from the date of duty free import of the said goods till the date of payment of such duty, if (i) in the case of capital goods, such goods are not proved to the satisfaction of the said officer to have been installed or otherwise used within the unit, within a period of one year from the date of import or procurement thereof or within such extended period not exceeding five years as the said officer may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow; (ii) in the case of goods other than capital goods, such goods as are not proved to the satisfaction of the said officer to have been used in connection with the production or packaging of goods in accordance with SION for export out of India or cleared for home consumption within a period of three years from the date of import or procurement thereof or within such extended period as the said officer may, on being satisfied that there is sufficient cause for not using them as above within the said period, allow: Provided that no such clearance or debonding of capital goods under the Export Promotion .....

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..... h & fifth year @ 1% Further as per Section 15 of the Customs Act, 1962 provides the date of determination of rate of duty and tariff valuation of imported goods. 11. The same is extracted here below: S.15. Date of determination of rate of duty and tariff valuation of imported goods. - (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards. 12. As per Section 15 (1)(b) of the act, the duty is payable at the time when goods were actually removed from warehouse under Section 68 of the Act. Admittedly, in the case in hand, .....

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..... on 61 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as said Act) and in supersession of the notification of Central Board of Excise and Customs, No. 67/95 (N.T.) Customs, dated the 1st November, 1995 vide number S.O. 870 (E), dated the 1st November, 1995, the Central Board of Excise and Customs, being satisfied that it is necessary so to do in the public interest hereby exempts interest accrued on the customs duties payable on the capital goods, components and spares of capital goods and material handling equipments (forklifts, overhead cranes, mobile cranes, crawler cranes, hoists and stackers), office equipments, captive power plants including captive generating sets, spares of captive power plants and captive generating sets, tools, jigs, gauges, fixtures, moulds, dies instruments and accessories, (other than raw materials, components and consumables) authorised to be imported by an export oriented undertaking or an Electronic Hardware Technology (EHTP) unit or a Software Technology Park (STP) Unit and warehoused under Chapter IX of the said Act, at the time of clearance from Customs Bended Warehouses under section 68 of the said Customs Act. Explanation. - For .....

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