2020 (3) TMI 424

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.... "8. Heard the parties. 9. From the arguments advanced by both sides, the following issues emerge: 1) whether appellant is liable to pay duty from the date of demanding of their unit on the rate of duty prevailing on such date or at the rate of duty prevailing at the time of import? 2) whether the appellant is liable to pay interest for the intervening period or not? Issue No.1 10. For better appreciation of the issue, Notification No. 52/2003- CUS dated 31.03.2003 as amended is extracted here: (3) The unit executes a bond in such form and for such sum and with such authority, as may be specified by the said officer, binding himself, - (a) to bring the said goods into the unit or and use them for the specified purpose mentioned in clauses (a) to (e) in the opening paragraph of this notification; (b) to maintain proper account of the receipt, storage and utilization of the goods; (c) to dispose of the goods or services, the articles produced, manufactured, processed and packaged in the unit, or the waste, scrap and remnants arising out of such production, manufacture, processing or packaging in....

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....o extracted here below: 4(b) in case of failure to achieve the positive Net Foreign exchange earning, the duty equal in amount to the portion of the duty leviable on the said goods but for the exemption contained in this notification and the duty so payable shall bear the same proportion as the unachieved portion of Net foreign exchange Earning bears to the positive Net Foreign exchange Earning to be achieved along with interest at the rate of as specified in the notification of the Government of India, Ministry of Finance, Department of Revenue issued under section 11Ab of the Central Excise Act, 1944, from the date of procurement of the said goods till the payment of such duty. Clause 8(i) such clearance or debonding of capital goods may be allowed on payment of an amount equal to the excise duty on the depreciated value thereof and at the rate in force on the date of debonding or clearance, as the case may be, if the unit has fulfilled the positive NFE criteria taking into consideration the depreciation allowable on the capital goods at the time of clearance or debonding. In case of failure to achieve the said positive NFE, the depreciation shall be allowed on ....

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....e of duty prevailing at the time of debonding of the unit. The duty is to be calculated accordingly. 13. With regard to indigenously procured capital goods in terms of Notification No. 22/2003-CE dated 31.03.2003 the clause 8(i) of the notification clearly specifies that the duty is payable at the rate in force on the date of debonding. As per the said notification, the appellant is liable to pay duty at the rate in force on the date of debonding. Therefore, with regard to the demand of differential duty of Rs. 21,03,122/-, we hold that appellant is liable to pay duty at the rate of prevailing on the date of debonding. The duty is to be calculated accordingly. Issue No.2 14. In terms of Notification No. 132/2004-Cus (NT) dated 25.11.2004 the appellant are not liable to pay interest as held by this Tribunal in the case of Business Process Technologies India Pvt Ltd., (supra) where in this Tribunal held as follows: 5. We have considered the submissions made at length by both sides and perused the records. The issue involved in this case is whether the appellant, an export oriented unit, is liable to pay the interest for the period during which the ....

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....logy Park (STP) unit" means a unit established under and in accordance with the Scheme notified by the Government of India in the Ministry of Commerce, vide, notification No. 4(RE-95)/92-97, dated the 30th April, 1995 and approved by the Inter Ministerial Standing Committee". 6. It can be seen from the above reproduced notification that Central Govt. has exempted the interest accrued on the customs duty payable by an export oriented unit. We also find that provisions of Section 61 clearly exclude the liability to pay interest for a period of 5 years from the date of bonding. We find that the decisions of this Bench in the case of Stelfast India P. Ltd. squarely covers the issue in favour of the appellant. We may reproduce the said ratio: "On a careful consideration, we notice that the notification No. 67/95-Cus. dated 1-11- 1995 exempts interest accrued on the Customs duty payable on the warehoused goods under Chapter IX of the Customs Act. Both the authorities have failed to see this provision of law and, therefore, the confirmation of interest is not justified. Furthermore, the plea taken that the Customs Authorities has taken their own time to de-bond the unit ....