TMI Blog2020 (9) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Commissioner (Appeals) has held that the appellants have cleared the 2 DG Sets in question bearing Sl. No. 2DN-00890 and DN-00915, under due permission for clearance into DTA as granted/permitted by the Development Commissioner, SEEPZ, vide letter No. SEEPZ/28/EOU/77/99-2000/ Vol-III/6876 dated 19.08.2004. I also hold that the appellants have fulfilled the conditions laid down in the said letter that (i) the appellants shall maintain the stipulated export obligation and NFE; and (ii) the appellants shall pay the applicable rate of duty on the value assessed by the Customs/Central Excise authorities. I further find that the appellants are eligible for the concessional rate of duty on the clearances effected to EPCG License holder unit. No contrary evidence has been produced by the Revenue to rebut the aforesaid findings of the learned Commissioner (Appeals) - there are no merit in the appeal filed by the Revenue - appeal dismissed - decided against Revenue. - Customs Appeal No. 882 of 2012 - A/85733/2020 - Dated:- 11-9-2020 - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Manoj Kumar, AC, Authorized Representative for the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 10.00 lakhs. Aggrieved by the said order, the respondent filed appeal before the learned Commissioner (Appeals), who in turn, allowed their appeal. Hence, the Revenue is in appeal. 3. At the outset, the learned AR for the Revenue reiterating the grounds of appeal submitted that the assessee did not have the permission of Development Commissioner for clearance of two DG Sets as the EPCG license was not issued by the DGFT as on the date of such application. It is his contention that since the EPCG License was not available with them, therefore, they approached the Development Commissioner for permission to clear the said goods in DTA. He has further submitted that the respondent had subsequently applied for EPCG License and cleared the goods availing concessional rate of duty. It is his contention that since no permission was obtained from the Development Commissioner, therefore, the adjudicating authority has rightly confirmed the demand. 4. Learned Advocate Ms. Padmavati Patil for the respondent has submitted that they have obtained necessary permission for clearance of the DG Sets from the Development Commissioner, SEEPZ and the permission was granted to them on 20.8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 I find that there is no bar for clearance of the said capital goods to EPCG License holder in the said permission or under para 6.16(b) of the EXIM Policy. The permission and the para only stipulate that the clearances should be effected in DTA and does not exclude any category of DTA units. 11.2 The achievement of NFE or maintenance of the stipulated export obligation by the appellants is not alleged or disputed at any point in the adjudication proceedings. It is therefore accepted that the appellants have complied with the condition (i) of the permission granted by the Development Commissioner, SEEPZ. 11.3 I also find that the assessable value on which the appellants have paid the concessional rate of duty is not under dispute and is therefore deemed to be accepted as the correct assessable value by the Department. It therefore, ensues that the appellants have correctly claimed the depreciation and paid the duty at the concessional rate of the Customs duty on the correct assessable value of the capital goods cleared by them to the EPCG License holder. 11.4 The only factor in dispute is the rate of duty or the eligibility of the exemption to the appellants. In this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifications such as the EPCG Scheme and concessional rate of duty is also applicable for the clearances made from an EOU. 12. In view of the foregoing discussion, it becomes evident that the appellants have cleared the 2 DG Sets in question bearing Sl. No. 2DN-00890 and DN-00915, under due permission for clearance into DTA as granted/permitted by the Development Commissioner, SEEPZ, vide letter No. SEEPZ/28/EOU/77/99-2000/ Vol-III/6876 dated 19.08.2004. I also hold that the appellants have fulfilled the conditions laid down in the said letter that (i) the appellants shall maintain the stipulated export obligation and NFE; and (ii) the appellants shall pay the applicable rate of duty on the value assessed by the Customs/Central Excise authorities. I further find that the appellants are eligible for the concessional rate of duty on the clearances effected to EPCG License holder unit. The impugned Order-in-Original is therefore not legally sustainable hence liable to be set aside. 8. No contrary evidence has been produced by the Revenue to rebut the aforesaid findings of the learned Commissioner (Appeals). Also, we find that this Tribunal in Sahajanand s Case dealing similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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