2008 (2) TMI 272 - AT - Customs

EOU engaged in the manufacture of Diamond Studded jewellery for export out of raw material (namely Gold/Diamonds) imported free of customs duty against a Bond export consignment, when it travelled out of factory premises, was looted/robbed revenue raise demand on ground of non completion of exportation for which Bond has been executed held that it is not a case of removal of goods from warehouse hence demand u/s 72 of Custom Act is not sustainable

Summary

Issues:
1. Interpretation of Section 72 of the Customs Act, 1962 regarding duty liability for goods cleared by a 100% EOU.
2. Application of the Division Bench judgment in Koeleman India Pvt. Ltd. v. CC, Bangalore.
3. Consideration of whether the looting of goods in transit constitutes pilferage under the Customs Act.

Analysis:
1. The main issue in this case revolves around the interpretation of Section 72 of the Customs Act, 1962 concerning duty liability for goods cleared by a 100% Export-Oriented Unit (EOU). The Revenue contended that the EOU is liable to pay duty and interest under Section 72 as they had imported raw materials duty-free against a bond for exporting the manufactured products. However, the learned Counsel argued that Section 72 does not directly apply to finished goods manufactured in a 100% EOU, as it pertains to goods improperly removed from a warehouse. The Commissioner (Appeals) concurred with this view, citing precedents where it was held that Section 72 was not applicable to goods damaged beyond the control of the appellants after the export order was given. The Commissioner set aside the demand, emphasizing that the goods were duly accounted for and cleared for export in accordance with prescribed procedures.

2. The application of the Division Bench judgment in Koeleman India Pvt. Ltd. v. CC, Bangalore played a crucial role in this case. The learned Counsel referenced this judgment to support their argument, highlighting that the issue at hand was similar to the one addressed in the Koeleman case. The Commissioner (Appeals) also relied on this judgment to conclude that the issue in question was squarely covered in favor of the respondent. The Division Bench ruling was instrumental in establishing that duty cannot be demanded on goods manufactured in a 100% EOU, especially when the goods were damaged post the export order, and there was no diversion for home consumption.

3. Another significant aspect of the case was the consideration of whether the looting of goods in transit constituted pilferage under the Customs Act. The Commissioner (Appeals) analyzed the circumstances of the looting incident, noting that it was an armed robbery by a gang of seven persons, as confirmed by the FIR. The Commissioner emphasized that the incident did not amount to pilferage, as pilferage typically involves theft of small quantities preventable by reasonable care. Given the nature of the robbery and the lack of doubt regarding the FIR, it was established that the goods being looted did not fall under the purview of pilferage as defined under the Customs Act.

In conclusion, the judgment upheld the decision of the Commissioner (Appeals) and rejected the appeal filed by the Revenue, emphasizing the correct application of legal provisions and precedents in determining the duty liability for goods cleared by a 100% EOU, as well as the significance of the Division Bench ruling in similar cases.