2017 (6) TMI 1133 - AT - Customs

100% EOU - warehousing period - extension of warehousing period - delicensing of warehouse - Held that - When any warehouse is delicensed, the goods may be deposited therein without payment of duty. But if such goods continued to be stored therein without payment of duty even after the warehousing period is over or the warehouse is de-licensed, the goods are deemed to have been removed improperly in violation of provision of Section 71 of the Customs Act, 1962. Under such circumstances, the duty on the said goods is liable to be discharged in terms of provisions of Section 72 (1) (b) ibid. Similar provision exists in Central Excise Law also in respect of goods procured duty free by EOUs. Since in this case the goods deemed to be removed by HCL, were not acquired into any other warehouse by Sykes, the responsibility for paying the duty lies upon the consigner i.e. H.C.L - it would suffice, if the appellant is asked to pay interest on the duty liabilities for the above period in respect of both imported and indigenous goods. The necessity for EOUs for separately obtaining extension of warehousing period for capital goods each time has been done away with vide Board Circular No.7/2005 Cus. dated 14.02.2005 - there is no justification for either demand of duty or confiscation of the goods lying in the bonded warehouse. Appeal allowed - decided partly in favor of appellant.

Summary

Issues Involved:
1. Unauthorized removal of goods from the bonded warehouse.
2. Demand of customs duty for goods lying in the bonded warehouse beyond the warehousing period.

Detailed Analysis:

1. Unauthorized Removal of Goods from the Bonded Warehouse:
The first issue pertains to the unauthorized removal of goods by HCL from their bonded warehouse. The Commissioner held that HCL de-licensed a part of the 5th floor on 05.08.2002, but M/s. Sykes, who took over the premises and goods on an inter-unit transfer (IUT) basis, did not obtain a warehouse license until 14.11.2003. Consequently, the capital goods were deemed to have been improperly removed and were subject to duty under Section 72 (1) (a) of the Customs Act, 1962, and Rule 20 (4) of the Central Excise Rules, 2002.

HCL argued that the goods were not physically removed but remained in the same premises, and that all necessary approvals were obtained from STPI and Customs Authorities. They contended that the lapse was on Sykes' part for not obtaining the warehouse license and bonding, and cited case law to support that no duty could be demanded for technical violations without actual removal of goods.

The Department countered that Section 72 (1) (b) of the Customs Act mandates duty payment for goods not removed from a warehouse after the expiration of the warehousing period. They argued that the goods remained in the premises without a valid warehouse license from 06.08.2002 to 13.11.2003.

The Tribunal found that the goods were indeed in unlicensed premises during the specified period, making HCL liable for duty. However, since the goods were subsequently transferred to Huawei with proper formalities, the duty liability was limited to the period from 06.08.2002 to 13.11.2003. The Tribunal upheld the confiscation order but allowed redemption on payment of fine and penalty, and also upheld the penalty on Sykes. The Tribunal directed HCL to pay interest on the duty liabilities for the specified period.

2. Demand of Customs Duty for Goods Lying in the Bonded Warehouse Beyond the Warehousing Period:
The second issue involved a demand for customs duty amounting to ?26,42,568/- for goods lying in the bonded warehouse beyond the warehousing period. The appellant had imported capital goods under customs exemption and warehoused them, periodically seeking extensions. However, no extension was sought after 06.04.2002, leading the Adjudicating Authority to demand duty and order confiscation.

HCL argued that a CBEC Circular No.7/2005 Cus. dated 14.02.2005 removed the necessity for separate extensions for capital goods, requiring only a renewal of the warehousing license every five years. They cited the Tribunal's decision in Sun Micro Systems to support their contention.

The Tribunal agreed with HCL, noting that the cited CBEC Circular allowed automatic extension of the warehousing period for capital goods upon renewal of the warehousing license. As the bonded premises license was valid till 04.05.2009, the warehousing period was deemed extended, making the demand for duty and confiscation premature.

Conclusion:
The Tribunal disposed of the appeals by directing HCL to pay interest on the duty liabilities for the period from 06.08.2002 to 13.11.2003, upholding the confiscation order with redemption on payment of fine and penalty. The penalty on Huawei was vacated, and the demand for duty and confiscation for goods lying in the bonded warehouse beyond the warehousing period was set aside.