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TMI Blog2002 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999. By letter dated 17-8-1999 it requested the Development Commissioner, Kandla Free Trade Zone, for permission to debond the unit. The Commissioner, by his letter dated 20-8-1999, permitted the de-bonding subject to the conditions mentioned in his letter. Subsequent to this permission, the appellant filed a bill of entry and paid duty on the capital goods which were installed or being used in the factory in January, 2000. The duty, which was calculated on the basis of the depreciated value of these machines, came to Rs. 31,69,658/-. In March, 2000 the department issued a notice to the appellant. The notice alleged that the unit had not achieved the value addition of 56% as prescribed and that the value addition was in fact much lower. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing excise duty is without jurisdiction. It is not denied by the departmental representative that no notice invoking Section 11A of that Act was issued. The only notice that was issued was in terms of Section 124 and Section 28 of the Customs Act, demanding customs duty on imported capital goods and imported raw materials. The departmental representative's contention that the duty that has been confirmed of Rs. 7.30 lakhs approximately is lower than the duty that was demanded of Rs. 18.97 lakhs on the raw material, is no answer. We are not concerned with the amount of duty, but the legality of the duty confirmed. The fact that the raw material was indigenous and not imported would have been clearly evident from the records that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods, material handling equipment, office equipment and captive power plants may be allowed on payment of an amount equal to the customs duty leviable on such goods on depreciated value thereof and the rate in force on the date of payment of such duty; (b) such clearance of goods (including container, suitable for repeated use) other than those specified in clause (a), may be allowed on payment of customs duty on the value at the time of import and at rates in force on the date of payment of such customs duty; (c) such clearance of used packing materials such as cardboard boxes, polyethylene bags of a kind unsuitable for repeated use may be allowed without payment of any customs duty : Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs to have been found installed or otherwise used within the bonded premises or re-exported within a period of one year from the date of importation or procurement thereof or within such extended period not exceeding five years as the Assistant Commissioner of Customs or Deputy Commissioner of Customs 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 are not proved to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs to have been used in connection with the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs or Deputy Commissioner of Customs may, on being satisfied that there is sufficient cause, allow : Provided that the Commissioner of Customs may extend the period for achievement of Net Foreign Exchange as a Percentage of Exports (NFEP) or Export Performance (EP) for further period, not exceeding five years, from the date of procurement." 6. The duty that the appellant paid was in terms of clause (a) of paragraph 5. This provides for clearance of capital goods and other equipment specified therein "for being taken to any other place in India" on payment of duty leviable on the depreciated value and at the rate in force on the date of payment of the duty. There is no dispute that the amount of Rs. 31,69,658/- represents this duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part from the fact that the capital goods are clearly excluded by it (once by the fact that it only refers to raw materials, components, spares and consumables and secondly by specifically excluding them). The position therefore would be that in the case of capital goods it is sub-paragraph (i) of paragraph 6 which would be relevant. In the case of goods other than capital goods which are not proved to have been used in the production or had not been re-exported within one year, this sub-paragraph (ii) will have to be applied. We are not really concerned with sub-paragraph (iii). In the case of raw materials, components, spares and consumables which had been used for production or export, for such production or export has not resulted in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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