TaxTMI 
TaxTMI 
2011 (5) TMI 709
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.... obligation by exporting 6 lakhs numbers of flowers and leaves each with a value addition of minimum 74%. During the period from 1995-99, EOU imported capital goods, consumables, spares, raw materials, equipments, etc., totally valued at Rs. 2,62,83,048/- availing exemption from payment of excise duty to the extent of Rs. 2,33,52,317/- in terms of Notification No. 13/81-Cus., dated 9-2-1981 and No. 53/97-Cus., dated 3-6-1997 as amended. As per the conditions of the said notification, they were required to carry out manufacturing operations and were obliged to export and fulfil the export obligation specified at the time of granting permissions to set up 100% EOU by using the imported goods. 2. On the ground that the appellant failed....
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....re infected and consequently they were able to export flowers worth only about Rs. 42 lakhs. Further, he also submitted that another difficulty was the fact that Netherlands, the country, to which they wanted to export the flowers increased customs duty on flowers thereby making it uneconomical to produce flowers and export to that country. Because of all these reasons, the export obligation could not be fulfilled. He relies upon the following decision of the Tribunal to support the contention that no penalty could have been imposed when non-fulfilment of export obligation was beyond the control of the importer. Indo Aquatics Ltd. v. CC & CE, Guntur [2008 (223) E.L.T. 241 (Tri.)]. 3.2 The next submission he made was that the duty de....
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....ns in support of his contention that depreciation is admissible. (a) Suvarna Aqua Farm & Exports Ltd. v. CC [2005 (190) E.L.T. 284 (T)]. (b) Nava Bharat Enterprises Ltd. v. CCE [2010 (256) E.L.T. 602 (T)]. (c) Premier Granites Ltd. v. CC&CE [2007 (210) E.L.T. 200 (T)]. (d) CC&CE v. Solitaire Machine Tools Pvt. Ltd. [2003 (152) E.L.T. 384 (T)]. Further he also submits that the very fact that the licence issued to EOU was renewed by the Asst. Commissioner of Central Excise in the month of November, 2003 itself would support his contention that the Department itself admitted that no duty is payable. 4. The ld. DR on the other hand s....
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....at depreciation is definitely not available in respect of the period in which unit was lying continuously closed. 5.1 We have considered the submissions made by both the sides. The first submission made by the ld. Counsel was that the show-cause notice itself was not issued in terms of the law and therefore the whole process was wrong. According to him, the show-cause notice proposed demand of duty under Section 72 of Customs Act, 1962 and since the goods had not been removed from the bonded warehouse, this provision was not applicable. However, we take note of the fact that in the show-cause notice issued to the appellant, "the appellant was required to show-cause as to why the customs duty amounting to Rs. 2,33,52,317/- along with....
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....he appellants cannot plead ignorance of the conditions of the notification and rely on a technical point that notice for demand could not have been issued under Section 72 of the Customs Act, 1962. Therefore, we are unable to accept the claim that the show-cause notice is not maintainable. Notification No. 13/81 in condition No. 6, it has been provided that the importer has to execute a bond as per the requirement of customs and is required to pay on demand an amount equal to the duty leviable on the goods and interest at the rate of 15% (under Notification No. 53/97) per annum or on the duty from the duty free importation or procurement of the goods till the date of payment of duty. This is required to be done if the appellant fails to sho....
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....terest. However, it is quite possible that subsequently notification could have been amended and therefore we leave it for consideration of the original adjudicating authority as to whether interest is payable for the earlier period as per the notification. 5.3 As regards confiscation, we find that decisions of the Tribunal cited by the ld. Counsel are applicable to the facts of this case. Therefore relying upon the decision of the Tribunal in the case of Suvarna Aqua Farm & Exports Ltd. (supra), we hold that confiscation is not warranted under the facts and circumstances in this case. It is to be noted that both the notifications under which goods were imported provide for payment of duty in the case of non-fulfilment of export obl....