Order date – 20 June 2022 

Facts – 

• The Appellant, M/s. Anjaleem Enterprises Pvt. Ltd., is engaged in development and export of Software as 100% export oriented unit. 
• On 22.05.1993 appellant applied for D-Bonding of the 100% Export Oriented Units (EOU) and the department of Industrial Development permitted the Appellant to clear capital goods without payment of duty and to gift the imported capital goods to an educational institution which was eligible to import such goods without payment of duty.
• A show cause notice was being issued by the department demanding duty on the imported goods. 
• The tribunal, on 17.10.2006, held that the duty of Rs. 12,43,033/- is to be paid and directed that depreciation should be allowed till the date of payment of duty and remanded back the case. 
• By applying the depreciation upto the date of payment of duty, Appellant submitted before the Deputy Commissioner that duty payable was NIL and therefore the amount of Rs. 2,00,000/- which had been deposited by the Appellant be refunded. 
• The Assistant commissioner rejected the Appellant’s claim for refund of said amount of Rs. 2,00,000 and the Appellant to pay the balance amount of Rs. 10,43,033/-.
• Aggrieved the appeal is being filed.
   

Issue – 

• Whether the appellant’s claim of duty being NIL by applying the depreciation upto the date of payment of duty is sustainable? 

Order - 

• The authorities observed that that lower authorities are not following the directions given by Tribunal that the depreciation is allowed upto the date of payment of duty. Lower Adjudicating authority held that deprecation was allowed only upto the date of permission for de-bonding which has been categorically held to be incorrect by the tribunal in its above remand order. Therefore, it was held that the impugned order is not sustainable in law. 
• As per the submission made by the Appellant that if the depreciation is considered upto the date of payment then duty comes to Nil. There is no rebuttal to this fact. Hence the demand is not sustainable.   
• Hence, the appeal is allowed.