TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 1134
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....rials duty free by availing exemption under Notification No.53/1997 Cus dated 03.06.1997. It has also procured indigenous raw material by availing exemption under Notification No.1/95 CE dated 04.01.1995 as amended vide notification No.22/2003 CE dated 31.03.2003. The exemption availed at the time of import and while procuring indigenous goods was available to 100% EOU subject to the fulfillment of the conditions of the notification that the entire manufactured goods shall be exported or the unit should achieve positive net foreign exchange earnings as a percentage of export fixed by the authority prescribed. 3. The unit started its commercial production in 2001 and had exported goods worth Rs. 13.03 lakhs only and thereafter became defunct from December 2002. As the unit had failed to fulfill the conditions of the Notification No.53/1997 Cus dated 03.06.1997, it was liable for demand of duties in terms of Section 28 read with Section 72 of the Act. The department issued a show-cause notice dated 26.04.2007 to the said EOU proposing to recover the duty forgone at the time of import as well as indigenous procurement. The Commissioner of Central Excise, Customs and Service Tax, Myso....
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....firmed by the Adjudicating for recovery of duty for non-fulfillment of the condition 6(i) of the Notification No.53/1997 Cus dated 03.06.1999 read with Section 72 of the Customs Act, 1962? 2. WHETHER, the demand of duty foregone in respect of the imported capital goods is not sustainable when the unit has lost the EOU status with effect from March 2006 (i.e., 5 years from commencement of commercial production) and not achieved the positive NFEE as prescribed under the exemption Notification. 3. WHETHER, the demand of duty foregone in respect of the imported capital goods is not justifiable under Section 72(1)(b) of the Act, which declares that the goods stored in the warehouse beyond the warehouse period shall be treated as 'improperly removed from the warehouse'? 4. WHETHER, the department is not justified in demanding the duty foregone, for violations of the conditions laid down in the B-17 Bond which is executed in terms of EXIM policy 1997-2002 read with Section 61 of the Customs Act, 1962 and notification No.53/1997 Cus. Dated 03.06.1997? 5. WHETHER, the Hon'ble Tribunal is complete when the Tribunal has overlooked the confiscation of the goods and imposition of....
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....another view of the matter. (iv) The Tribunal had acted in gross violation of the procedure or principles of natural justice occasioning a failure of justice. 22. The above parameters, which by no means should be considered to be exhaustive, may now be applied to the case of the parties before us to decide the primary question indicated at the outset of the present order, namely, whether this appeal deserves to be admitted." 16. We are of the considered view that the Legislature has carved out only following categories of cases to which it has intended to give a special treatment of providing an appeal directly to this Court. "(i) determination of a question relating to a rate of duty; (ii) determination of a question relating to the valuation of goods for the purpose of assessment; (iii) determination of a question relating to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; (iv) whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for." 17. Reverting to the present case, it would clearly be seen that the on....
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.... to the decision of the CCE Vs. SEMCO Electric Pvt., Ltd., reported in 2007 (215) ELT 253 (Tri-Mum), has held thus: "5. After considering the rival submissions and on perusal of the record, it appears that the Tribunal has taken a view in the above mentioned case that the duty on capital goods has been excluded from the payment of duty on the condition for export and the same was permitted for installation of the capital goods and used within the factory. In the instant case, the capital goods were installed in the factory and were used primarily for the export of the goods. Therefore, we modified the impugned order and allow the claim of the appellant pertaining to the capital goods where duty is not leviable. Regarding the raw-material, the appellant has agreed to pay the duty as per the law." 9. The relevant paragraph of SEMCO Electric Pvt., Ltd., supra, that has been quoted in paragraph No.3 of the impugned order reads thus: "3. ........... 2. We have heard both sides. We find 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 i....