TaxTMI 
TaxTMI 
2026 (4) TMI 543
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..../2018, "1) WHETHER, in the present facts and circumstances of the case, the Hon'ble CESTAT, Bengaluru is justified/correct in setting aside the demand confirmed by the Adjudicating Authority for recovery of duty for non-fulfillment of the condition 6(i) of the Notification No. 53/1997 Cus dated 03.06.1997 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....
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....d Senior Standing counsel for the appellant and Sri. Ravi Raghavan & Sri. K.M. Nischal, learned counsel for the respondent. 4. The respondent was permitted by the Department of Industrial Development to set up a 100% Export Oriented Unit (EOU) and is registered under the Central Excise Act, 1944, and the Customs Act, 1962. The respondent imported duty-free capital goods and raw materials/consumables by availing exemptions under the erstwhile Notification No. 53/1997-Customs dated 03.06.1997 (now Notification No. 52/2003-Customs dated 31.03.2003). The respondent also procured duty-free capital goods and raw materials/consumables indigenously by availing the benefits of the Notifications. For the period from 05.06.2000 to 20.03.2003, the r....
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....ntail the levy of duty on the capital goods. These contentions were rejected, and by order dated 06.02.2012, duty was levied along with a penalty of Rs. 50 lakhs under Section 112(a) of the Customs Act, 1962, in respect of the capital goods. Further duties and penalties were also levied with regard to capital goods and raw materials under other provisions of the Act. 7. The assessee accepted the order imposing duty on unutilized raw materials and consumables and paid the duty along with the penalty. However, the respondent-assessee disputed the levy on the import of capital goods by filing an appeal before the Tribunal. The Tribunal, following its earlier decision in Hindustan Agrigenetics Limited v. Commissioner of Customs, Hyderabad, i....
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....cation No. 53/1997 dated 03.06.1997. It is submitted that goods imported with an export obligation, but in respect of which the export obligation is not fulfilled, would attract the levy of duty. Learned Senior Standing Counsel further submits that Notification dated 31.03.2003 was issued, imposing the levy of duty on the import of capital goods, and that the same is clarificatory in nature and applies retrospectively. 10. On the other hand, Sri Ravi Raghavan and Sri K.M. Nischal, learned counsels appearing for the respondent- assessee, submit that the issue is covered by the earlier order of the Tribunal in Hindustan Agrigenetics Limited (supra), which has attained finality. Learned counsels further submit that Notification dated 31.03.....
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....hin a period of one year from the date of importation. In the case of raw materials, non-fulfillment of the export obligation, measured in terms of Net Foreign Exchange Earnings as a Percentage of Exports (NFEP), results in the levy of duty. Notification dated 31.03.2003, however, introduced a different criterion. 14. The Tribunal, in its referred order, has categorically held that the duty forgone on capital goods is excluded from the levy of duty, as the condition for exemption in respect of capital goods is limited only to their installation and use within the unit for the manufacture of goods for export. It is held that when the procurement and installation of capital goods is not in dispute, the demand for duty on such capital goods....