2022 (1) TMI 470

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....or short) in Final Order No.20968/2018, whereby the appeal filed by the respondent - assessee has been allowed by setting aside the impugned order dated 19.5.2009 passed by the Commissioner confirming the demand of Rs. 1,84,14,711/- along with interest and the redemption fine applicable under the provisions of Section 125 of the Act as well as the penalty under Section 112(a) of the Act. 2. Respondent - assessee is engaged in the manufacture/development/export of software. The respondent is a 100% subsidiary of M/s Hewlet Packard Europe BV and is EOU working under STP Scheme. The respondent had obtained sanction order and Private Bonded Warehouse licence to manufacture/develop and export of software. 3. It is alleged by the department tha....

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....n No.64/2002-Cus, is the condition of use of capital goods cannot be read retrospectively?   4. WHETHER, the usage of words "goods imported by a unit to another hundred percent export oriented undertaking or to a unit in the Export processing zone/Free Trade zone for the purpose of development of software, data entry and conversion, data processing, data analysis and control or data management for export as per procedure prescribed" in the condition No.13 of the Notification No.140/91-Cus dt: 22/10/1991 means the usage of goods within the unit for the purpose of the said Notification?. 5. Whether, the deemed renewal of warehousing license dispenses the units from installing/using the capital goods as per the circular No.7/2005- Cus....

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....eing contrary to the notification No.140/91- Cus, dated 22.10.1991 and the notification No.7/2005- Cus, dated 14.2.2005, the same deserves to be set aside answering the substantial questions of law in favour of the Revenue and against the assessee. 6. Learned counsel appearing for the respondent - assessee would submit that the goods imported by M/s Verifone India Pvt. Ltd., were indeed used by the said importer from 1990 to 2001 till the respondent - company got merged with the said importer - M/s Verifone India Pvt. Ltd. The main ground of the department that the said imported goods were not used, is wholly untenable since having used the imported electronic goods, the same would become obsolete, as such, it was kept in the warehouse. Th....

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....confirm the finding of the Tribunal that the inter unit transfer of capital goods between the two 100% EOU's is concerned, in the light of the notification No.140/91-Cus, it certainly makes clear that the respondent - assessee is entitled for the benefit under the exemption notification. 8. The main ground urged by the Revenue that the condition of the notification for not using the capital goods on inter unit transfer was not complied with, cannot be countenanced since the said imported goods were undisputedly used by the importer M/s Verifone India Pvt. Ltd., from 1990-2001 till the merger of the respondent - company with M/s Verifone India Pvt. Ltd. Further, the basis for the demand is relying on the notification No.64/2002-Cus, dated 2....