2004 (11) TMI 158

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....o imposed penalty. 2. Shri K.K. Anand, learned Advocate, submitted that the Appellants were granted letter of permission for setting a 100% Exported-Oriented Undertaking for the manufacture and export of TPR granules on 8-2-1996; that the project was commissioned on 27-1-1998 when the commercial production started; that they had imported raw material weighing, 96.6 M.T. without payment of Customs duty; that in addition they had acquired capital goods valued at Rs. 44,70,700/- from indigenous source without payment of Central Excise duty under Notification No. 1/95-C.E.; that due to poor international market they could not compete; that out of the raw material imported by them, 54.80 M.T. raw material had been removed by them on payment o....

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.... No. 2/95-C.E. dated 4-1-1995 was denied by the Asstt. Commissioner which on appeal has been reversed by the Commissioner (Appeals) vide Order-in-Appeal No. 63/99 dated July, 1999. In this regard he also relied upon the decision of the Larger Bench of the Tribunal in the case of Himalya International Ltd. v. CCE, Chandigarh - 2003 (154) E.L.T. 580 (Tribunal-LB) wherein it has been held that the rate of duty applicable to the clearance of goods from a 100% E.O.U. to D.T.A. even in excess of the permission of the Development Commissioner cannot be under Section 3(1) of the Central Excise Act and the duty is to be discharged under proviso to Section 3(1) of the Central Excise Act; that the case of the Appellants is on the stronger footing as t....

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....imported by them duty free; that they are also liable to pay Central Excise duty on capital goods procured indigenously without allowing any depreciation as the goods have not been used for the purpose of manufacturing goods for export. In this regard she referred to the Explanation given below Para 6 of Notification No. 1/95-C.E., dated 4-1-1995 wherein it is mentioned that the depreciation in respect of capital goods shall be allowed for the period from the date of commencement of commercial production of the unit or the date of receipt of the goods in the unit whichever is later, that as the capital goods have not been used the question of granting an depreciation does not arise. In this regard she also referred to the letter dated 27-5-....