TaxTMI 
TaxTMI 
2010 (5) TMI 929
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.... of permission dt. 28/10/1994 by the DGFT for setting up a 100% EOU for manufacture and export of cut flowers for a period of 5 years. Based upon such letter of permission during the year 1995-96 to 1997-98, appellant imported capital goods, raw materials, consumables and components etc. to the extent of CIF value of Rs. 114.65 lakhs and Rs. 32.27 lakhs respectively by availing exemption under Notification No.126/94-Cus. dt/ 3/6/1994. The said capital goods and raw materials, consumables and components were received in the premises and re-warehoused. The appellant commenced commercial production from 10/11/1995 and exported the final products till 1998-99. The Development Commissioner noticing the export performance of the appellant being s....
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....goods. It is his submission that as regards the raw materials, components and consumables, they are consumed by the appellant during the period when they exported cut flowers. As regards the capital goods, it is his submission that Notification No.126/94-Cus. dt. 3/6/1994 does not contemplate for recovery of such duty on the capital goods. He would draw our attention to the clauses of the said notification. He would submit that Notification No.126/94 was rescinded and new Notification No.52/2003 was issued on 31/3/2003, which had a clause of recovery of duty on capital goods and from that date onwards customs duty foregone by the Revenue can be demanded. He would submit that the issue involved in this case is prior to the Notification which....
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.... of procurement of the capital goods has executed a bond in such a form and such sun as was prescribed. He would submit that the appellant had failed to fulfill the export obligation and violated the conditions stipulated in the Notification and hence is liable to pay back the amount of customs duty foregone by the Department. He lay emphasis on the case law of the co-ordinate Bench of the Tribunal in the case of Dinesh Agro Products Ltd. Vs. CCE, Pune-III [2009(241) ELT 404 (Tri. Mum.)] for the proposition that non-fulfillment of export obligation would mean that the assessee has not complied with the conditions of the notification. It is also his submission that the appellant had availed the benefit of Notification No.13/81-Cus. dt. 9/2/1....
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....T authorities had cancelled the letter of permission granted to them on 28/10/1994. The admitted fact being that the appellant had installed and used the capital goods and raw materials, consumables and components imported by him claiming the benefit of Notification No.126/94-Cus. and it is recorded in the Order-in-Original that the appellant had started commercial production from 10/11/1995. 8. It is also recorded in the Order-in-Original that there was no stocks other than the capital goods as per the reply filed by the appellant. 9. In the light of the aforementioned undisputed facts, it is also for us to reproduce Notification No.126/94, which is reproduced as hereunder: - 10. It can be seen from clause-3 of the said notification tha....
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....d that the Commissioner has dealt with this demand in Para 97 of the impugned order wherein he has recorded that the conditions of Notification No. 53/97-Cus. have not been violated by the respondents in relation to the moulds and dies for the reason that the capital goods viz. moulds and dies were installed and used in the factory of the respondents for the manufacture of export articles and it is only in the event of non-installation and non-utilization of the capital goods in the manufacture of export articles that duty demand can be raised in terms of the Notification. Clause 6(1) of Notification 53/97 provides for levy of duty in the case of capital goods if such goods are not proved to the satisfaction of the Asstt. Commissioner or Dy....