Custom, Excise & Service Tax Tribunal
Commissioner Of Customs, Central ... vs Delta Park Aqua on 16 April, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 20544 / 2014 Appeal(s) Involved: E/632/2008-SM [Arising out of Order in Appeal No.44/2008-CE dated 29/05/2008 passed by CCE&C(Appeals), Guntur] Commissioner of Customs, Central Excise and Service Tax - GUNTUR P.B.NO. 331...C.R.BUILDING, KANNAVARI THOTA, GUNTUR, ANDHRA PRADESH 520004 Appellant(s) Versus DELTA PARK AQUA 100%, EOU, KANAPARTHY VILLAGE, PRAKASAM DIST,A.P Respondent(s)
Appearance:
Shri R. Gurunathan, Addl. Commissioner(AR) For the Appellant None For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER Date of Hearing: 16/04/2014 Date of Decision: 16/04/2014 Order Per : B.S.V.MURTHY Respondent is a 100% EOU and on the ground that they had not utilised the goods imported/sourced indigenously for the purpose of production of export goods and therefore the duty liability on the said items have to be discharged, proceedings were initiated. Proceedings were initiated after the Development Commissioner had penalized the respondent for not fulfilling the export obligation and imposed the penalty on them. The original adjudicating authority held that a. the unit did not commence commercial production, b. there is no evidence to show that the goods obtained duty free were put to use, c. depreciation will be admissible only when the goods are put to use. The learned Commissioner(Appeals) held that the observation that there was no production at all is not correct in view of the fact that the appellant had fulfilled export obligation to the extent of 5.31%. I find myself in agreement with this observation in view of the fact that there is no evidence to show that this achievement was made without using the goods imported/sourced indigenously. Secondly the observation of the learned original adjudicating authority that the consumables were not consumed also was without basis. Learned AR argued that at least on this issue, duty should be demanded. However, on going through the annexure to the show-cause notice, the Order-in-Original and the Order-in-Appeal, what I have seen is that the annexure to the show-cause notice shows the quantity of consumables sourced without payment of duty and the observation of the original adjudicating authority that consumables were not consumed and the learned Commissioner(Appeals) that consumables were consumed are not based on any evidence. In the absence of any evidence to show that the consumables were not used for production of export goods which were apparently produced in view of the fact that 5.31% of export obligation has been fulfilled, the observation of learned Commissioner(Appeals) that consumables were consumed has to be accepted. The Revenue is in appeal on the ground that the depreciation could not have been allowed because the Assistant Commissioner had observed that capital goods had not been used. This observation has no basis and therefore in the absence of any further evidence placed by the Revenue on record, this ground also cannot be considered. In the result, the appeal filed by the Revenue has no merit and is rejected.
(Operative portion of the order pronounced in open court) B.S.V.MURTHY TECHNICAL MEMBER Raja.2