TaxTMI 
TaxTMI 
2014 (10) TMI 827
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....ty - (i) Denied the benefit of Notification No. 52/2003-Cus., dated 31-3-2003 and No. 22/2003-C.E., dated 31-3-2003. (ii) Demanded duty Rs. 71,41,327/- under Section 28 of Customs Act, 1962 read with Section 3 of Central Excise Act, 1944 from M/s. Hanil Era Textiles Ltd. (iii) Demanded interest on the above confirmed amount under Section 28AB of Customs Act, 1962. (iv) Imposed penalty Rs. 71,41,327/- on M/s. Hanil Era Textiles Ltd. under Section 114A of Customs Act, 1962. (v) Confiscated Machines valued at Rs. 1,94,17,402/- under Section 111(o) of Customs Act, 1962 read with Rule 25 of Central Excise Rules, 2002 with an option of r....
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....g No. V/PI/Gr-II/RGD/Hanil Era/27/10, dated 6-11-2012 was issued proposing denial of benefits of notification 52/2003-Cus., dated 31-3-2003 and 22/3003-C.E., dated 31-3-2003, demand of custom duty of Rs. 71,41,827/- under Section 28 of Customs Act, 1962 read with Section 3 of Central Excise Act, 1944 and penalty and interest proposed to be imposed. The contention of the show cause notice is that M/s. Hanil Era removed two machines in violation of provision of Notification No. 52/2003-Cus., dated 31-3-2003 and 22/3003-C.E., dated 31-3-2003. In adjudication the goods were confiscated, confirmed duty demand and imposed penalties/interest in the impugned order. Thus, appellants are before us. 3. The ld. Counsel appearing on behalf of ap....
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....ted 31-3-2003. After applicable depreciation provided in Notification No. 22/2003-C.E., whatsoever excise duty is payable, the appellant have paid Excise duty, therefore demand confirmed in the impugned order is not sustainable. In view of his submissions, he prayed that the pre-deposit may be waived and unconditional stay may be granted. 4. The ld. Addl. Commr. (AR) on the other hand reiterating the findings of impugned order submits that it is a case of clandestine removal of duty free imported machines in the EOU, therefore the benefits of notification is not available to the appellant and the demand of duty correctly made in the impugned order. Hence, the appellants may be put to terms of pre-deposit of adjudged dues. 5.&emsp....
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....o. 52/2003- Cus., with the relevant paras in Foreign Trade Policy and Handbook, it was found that since machines are to be cleared on payment of duty, there is no requirement of permission in terms of para 4 of said notification. Permission provision will only apply if it is provided in the policy, whereas in policy no such permission is provided. However in any case, if the capital goods is cleared after substantial use in the EOU, duty cannot be demanded on the full import value. The para 4 of Notification No. 52/2003-Cus. is reproduced below : 4. Without prejudice to any other provision contained in this notification, the said officer may, subject to such conditions and limitations as he may deem fit to impose under the circumsta....
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.... second year @ 8% for every quarter in the third year @ 5% for every quarter in the fourth and fifth year @1% (ii) for capital goods other than Computer and computer peripherals : for every quarter in the first year @ 4% for every quarter in the second year @ 3% for every quarter in the third year @ 3% for every quarter in the fourth and fifth year @2.5% and thereafter for every quarter @2% Explanation. - (1) For the purpose of computing rate of depreciation for any part of a quarter, a full such quarter shall be taken into account; (2) there shall be no upper limit for such depreciation and depr....
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....on the eligibility and subsequent denial of Notification. No. 22/2003-C.E., we are of the view that in the present case of import of duty free machines and clearance thereof in DTA after use, Notification No. 22/2003-C.E. does not apply. Therefore all the findings of the ld. Commissioner on the issue of applicability of Notification No. 22/2003-C.E. is not relevant. In view of our above observations, this is a fit case for remand, accordingly the matter in respect of all the present appellants is remanded to the Adjudicating Authority for passing a fresh order and while passing such order, the Authority is directed to first ascertain the date of clearance of the machines from EOU to DTA so that depreciated value can be correctly determined.....