TMI Blog2020 (3) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of duty prevailing on the date of debonding - no interest is payable by the appellant. The Revenue is directed to calculate the duty at the rate prevailing on the date of debonding. If any, amount is payable by the appellant, the same is shall be paid within one month - appeal disposed off. - Customs Appeal No. 38 of 2011 - A/30775/2020 - Dated:- 4-3-2020 - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri B. V. Kumar, Advocate for the Appellant. Shri C. Mallikarjun Reddy, Superintendent for the Respondent. ORDER PER: ASHOK JINDAL 1. The appellant is in appeal against the Order-in-Appeal No.53/2010- VCH dated 30.09.2010 wherein differential duty has been demanded from the appellant in terms of Notification No. 52/2003-Cus dated 31.03.2003 and Notification No. 22/2003-CE dated 31.03.2003 alleging that appellant is liable to pay duty at the rate prevailing at the time of import/procurement of the goods, whereas appellant paid the duty at the rate prevailing at the time of debonding of the unit. 2. Heard the parties. 3. The said issue has been dealt with by this Tribunal in their own cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Capital goods Scheme of Chapter 5 of the Foreign Trade Policy shall be allowed if the unit has not fulfilled the positive NFE criteria at the time of clearance or debonding in terms of Para 6.18(d) of Foreign Trade Policy: Provided further that (a) 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. The notification no. 22/2003-CE dated 31.03.2003 as amended is also extracted here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 debonding of the unit. The duty is to be calculated accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 the purposes of this notification, - (i) Electronic Hardware Technology Park (EHTP) unit means a unit established under and in accordance with the Electronic Hardware Technology Park Scheme notified by the Government of India in the Ministry of Commerce, vide, notification No. 5 (RE-95)/92-97, dated the 30 April, 1995 and approved by the Inter Ministerial Standing Committee; (ii) export oriented undertaking has the same meaning as assigned to hundred per cent export oriented undertaking in clause (ii) to the Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944); and (iii) Software Technology Park (STP) unit means a unit established under and in accordance with the Scheme notified by the Government of India in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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