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TMI Blog1989 (6) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs (Technical), Collectorate of Customs (Preventive) issued a demand under Section 72(1) of the Customs Act, 1962 directing the appellants to pay Customs Duty of Rs. 6,73,885.80 and CV duty : of Rs. 1,63,657.98 (Total Rs. 8,37,543.78) on the 832 bales of inbond imported wood pulp which were still lying in the warehouse, alongwith the interest @ 12% per annum amounting to Rs. 66,003.52 calculated for the period from 16-9-1984 to 15-5-1985 in terms of Section 72(1) (b) of the Customs Act, 1962. Since, however, an amount of Rs. 8,03,458.32 was already deposited by the appellants towards customs duty and CV duty on 800 bales of wood pulp, the same amount was allowed to be deducted from the total amount payable as per the above demand notice. The appellants were, therefore, asked to pay the balance amount of Rs. 1,01,088.98 plus interest accrued till the date of actual physical removal of the goods from the warehouse after 15-5-1985 upto which date interest had been included in the above amount. It was also made clear in the demand notice that if the amount was not paid within 7 days from the date of receipt of the notice, the amount would be recovered in terms of provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative but to pay the amount of Rs. 1,01,088.98 under protest and without prejudice to their rights and contentions in the matter. Accordingly, the appellants deposited a sum of Rs. 1,01,088.98 on 22-6-1985 as the balance amount of duty plus interest upto 15-5-1985 leviable on 832 bales of wood pulp kept in the warehouse. On 25-6-1985, the Assistant Collector of Customs passed another order with reference to the appellant s letter dated 10-4-1985 in which they requested for de-bonding their bonded warehouse. In the said order dated 25-6-1985, the Assistant Collector directed that 832 bales of rayon grade wood pulp should be released to the appellants on realising further interest, if anything is due. He ordered that the appellants bonded warehouse at Mogra would be treated as de-licensed from the date on which the goods stored therein were cleared in the manner as stated in his order and after the action regarding cancellation of the bond is completed. It was also clarified by the Assistant Collector in the said order that the warehoused goods which would be cleared on the basis of that order should not be cleared on ex-bond bill of entry as it was not a case of clearance un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest were demanded in the said order. Since no appeal was filed against that order, the said order has become final. By the order-in-original dated 26-5-1985, the Assistant Collector has order de-bonding of the warehouse and for recovering the balance amount. He has, therefore, argued that the present appeal before this Tribunal is not maintainable. In reply to this objection of the learned JCDR, Shri Bagaria for the appellants has drawn our attention to the Assistant Collector s letters dated 8-5-1985,3-6-1985 and 10-6-1985 and the appellant s letters dated 30-5-1985 and 22-6-1985. He has argued that no cross-objection was filed by the Revenue against this appeal of the appellants. He has, therefore, argued that a preliminary objection regarding the maintainability of the appeal cannot be raised by the Revenue at this stage. In support of this argument, he has relied on the following decisions:- (i) AIR 1965 SC 948 - Isher Singh v. Sarwan Singh and others. (ii) (1979) 117 ITR 930 (at page 937) - Additional Commissioner of Income-tax, Mad. I v. Dalmia Magnesite Corporation. (iii) (1968) 67 ITR 823 (at page 837 838) - Kanan Devon Hills Produce Co. Ltd. v. Commissioner of W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 of the Customs Act, but it was under Section 72 ibid. Section 15(l)(b) applies to clearance under Section 68 of the Customs Act. Since in this case, it is not so, Section 15(1)(b) is not applicable. He has also stated that no ex-bond bill of entry was used for removal of the goods on the basis of the Assistant Collector s order dated 25-6-1985 against which an appeal was filed before the Collector (Appeals). He has also argued that the goods ceased to be warehoused goods after expiry of the warehousing period. The rate of duty mentioned in the into-bond bill of entry is applicable for removal of goods under Section 72 of the Customs Act. The same has been done by the Department in this case. He has also argued that none of the decisions relied on by the learned Advocate is applicable to the present case as the facts are different. He has, therefore, prayed that the appeal may be dismissed. 5. We have perused the records and have considered the arguments of the learned Advocate and the learned JCDR. We shall first deal with the preliminary objection raised by the learned JCDR. The learned Advocate has cited a number of decisions in support of his argument that no preliminary ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act in respect of the sum of Rs. 3,58,996/-, which had been allowed by the Appellate Assistant Commissioner and in respect of which the Department had not preferred a cross-appeal or cross-objection. In (1978) 112 ITR 622, the Hon ble Madras High Court has held that the Department cannot enlarge the scope of appeal to consider a point not so raised before the Appellate Assistant Commissioner. In the said case the Department did not challenge the point decided by the Appellate Assistant Commissioner in favour of the assessee either by filing separate appeal or by cross-objection. In (1958) 33 ITR 82, it was held by the Hon ble Bombay High Court that no new ground might be raised for the first time before the Tribunal by the respondent. In (1981) 128 ITR 388 also it was held by the Hon ble Delhi High Court that normally a new point is not to be permitted to be raised at the second appeal stage before the Tribunal. In the case reported in (1979) 119 ITR 855, the assessee filed an appeal before the Appellate Assistant Commissioner against the order of the Income-tax officer. According to the Appellate Assistant Commissioner of Income-tax, the orders of the Income-tax Officer which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) has held that the provision of Section 15(l)(b) of the Customs Act is not applicable in the present case as the duty and the interest were demanded in terms of Section 72(l)(b) of the Customs Act, 1962. He has rejected the appellants contention regarding applicability of Section 15(l)(b) ibid. The revenue did not file any appeal challenging the Collector s order on the ground that he could not decide the issues regarding demands for duty and interest and the applicability of the Section 15(l)(b) of the Customs Act as no specific appeal was filed against the Assistant Collector s order dated 8-5-1985. Having failed to do so, the learned JCDR could not now raise the preliminary objection that an appeal against the impugned order of the Collector (Appeals) before this Tribunal is not maintainable on the ground that the appellants did not file an appeal against the Assistant Collector s order dated 8-5-1985. In similar circumstances, in the case of Additional Commissioner of Income-tax v. Dalmia Magnesite Corporation, reported in (1979) 117 ITR 930, the Hon ble Madras High Court has held that the Tribunal was not right in holding that the appeal before it was not maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... home consumption was filed on 27-11-1975. As there was dispute about classification of goods and I.T.C. Licence, the importer requested the Assistant Collector on 27-12-1975, for permission to warehouse the goods. An into bond bill of entry was filed on 1-1-1976 and the goods were warehoused on 23-1-1976. After the disputes were settled, the importer filed ex-bond bill of entry on 9-2-1977 for removal of the goods from the warehouse and paid duty levied on that bill of entry on 26-2-1977. The importer contended that the rate of duty prevalent at the time of entry of the goods into the territorial waters of India should be applicable and not the rate of duty in force on the date of ex-bond clearance from the warehouse. Tribunal held that the rate of duty in force on the date of actual removal from the warehouse was chargeable. (iv) 1987 (31) E.L.T. 736 (Tribunal) The importers imported goods and got them assessed as Project Import under Tariff Heading 84.66 of the Customs Tariff Act, 1975. The goods were kept in the bonded warehouse. At the time of clearance of the goods ex-bond, the importers claimed concessional rate of assessment at 25% ad valorem under Notification No. 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to import, yet will not, for fiscal purposes, determine the date and the time for the purpose of calculating the rate of duty which is leviable under Section 15 of the Customs Act. (vii) 1987 (28) E.L.T. 39 (S.C.) In different situation the Hon ble Supreme Court held that under Section 15 of the Customs Act, the rate of duty and the tariff valuation in the case of goods entered for home consumption under Section 46 shall be as on the date when the Bill of Entry is presented, in the case of goods cleared from a warehouse under Section 68 as on the date on which the goods are actually removed from the warehouse and in the case of any other goods as on the date of payment of duty. (viii) 1979 E.L.T. (J 241) (S.C.) The facts of the case reported in this judgment have been stated in paragraph-2 of the judgment itself, which is reproduced below:- The appellants obtained licences for the import of 102 cases of 3,000 kgs. of nylon yarn. The yarn was shipped to Bombay on the basis of a letter of credit in favour of the foreign suppliers. When the shipment arrived, the appellants received the bill of lading and other documents of title from the bankers on or about August 23,1965, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions relied on by the learned Advocate cannot, therefore, be applied to the present case. 8. In the present case, the goods were not cleared from the warehouse under Section 68 of the Customs Act. The goods were removed on the basis of Assistant Collector s order dated 26-5-1985. Section 68 of the Act ibid provides as follows :- The importer of any warehoused goods may clear them for home consumption if - (a) a Bill of Entry for home consumption in respect of such goods has been presented in the prescribed form; (b) the import duty leviable on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for home consumption have been made by the proper officer. In this case, no ex-bond bill of entry for home consumption was filed by the appellants in the prescribed form and no order for clearance for home consumption was made by the proper officer on the Bill of entry. The conditions of Section 68 of the Customs Act were not fulfilled by the appellants. Section 15(1)(b) of the Customs Act becomes applicable when the goods are cleared from a warehouse under Section 68. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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