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TMI Blog2024 (5) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... . 106/2017-CE dated 07.03.2017. Since the issue involved in both the appeals is common, they are taken up together for disposal. 2. The brief facts are that the appellant had imported one power screen track mounted screening plant T Chieftain valued at Rs. 78,12,454/- vide Bill of Entry No. 696953 dated 03.08.2006. Though the Development Commissioner vide their letter dated 14.12.2007 had permitted for debonding of the above capital goods, the appellant had not de-bonded them. Meanwhile, a mob of villagers on 24.07.2008 entered their premises and burnt the capital goods. Subsequent, to this the goods were de-bonded and cleared as scrap and paid the relevant duties accordingly. However, notice dated 13.12.2012 was issued for demanding the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on highest quoted price. It is also submitted that the order is contrary to the provisions of Section 22 and Section 23 of the Customs Act, 1962, where the Act allows abatement of duty on damaged or deteriorated goods and relied on the following decisions: * Jindal Vijayanagar Steel Ltd. vs. CC: 2006 (201) ELT 18 (Tri.-Bang.) * CC, Bangalore vs. Next Fashion Creators Pvt. Ltd.: 2012 (280) ELT 374 (Kar.) affirming the Tribunal's decision as reported at 2006 (206) ELT 1015 (Tri.-Bang.) * Winsome Yarn Ltd. vs. CCE: 2001 (134) ELT 686 (Tri.-Del.) 3.2 The learned counsel further submits that the appellant vide their letter dated 6th March 2010 to the Development Commissioner, Cochin, Special Economic Zone, Bangalore, that they wanted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. 170/2016-CE AU-I dated 7.11.2016, an appeal was filed by the appellant before the Commissioner (A) against the Order-in-Original No. 11/2014 dated 12.02.2014 for setting aside the entire order and the impugned order confirms the demand of duty along with interest and drops the penalty imposed under Section 114A on the ground that "Section 114A is applicable only in a case where the duty has been short levied by reason of collusion, wilful misstatement or suppression of facts and in the instant case, there had been continuous correspondence between the appellant and the department on this issue and there is no suppression of facts." 5.1 In the appeal No. C/20711/2017 against Order-in-Appeal No. 106/2017-CE AU-I dated 7.3.2017, Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that duty will be paid on the highest bidder of the scrap after disposing the same as per customs procedure. Letter dated 6.03.2010 to the Development Commissioner, the appellant had intimated them that they had decided to scrap the machines which were burnt during the riots and requested for a No Objection certificate to de-bond the capital goods and pay the duty on the scrap. In response to this letter, the Assistant Development Commissioner has allowed them to de-bond the capital goods as per Para 6.15 (b) of Chapter 6 of the Foreign Trade Policy, 2009 - 2014 subject to payment of applicable duties and observance of customs formalities. 6.1 In view of the above stated facts, it is clear that the appellant had intimated about the riot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court held that: "7. As repeatedly held by this Court, show cause notice is the foundation of the Demand under Central Excise Act and if the show cause notice in the present case itself proceeds on the basis that the product in question is a by-product and not a final product, then, in that event, we need not answer the larger question of law framed hereinabove. On this short point, we are in agreement with the view expressed by the Tribunal that nowhere in the show cause notice it has been alleged by the Department that Lean Gas is a final product. Ultimately, an assessee is required to reply to the show cause notice and if the allegation proceeds on the basis that Lean Gas is a by-product, then there is no question of the assessee dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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