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TMI Blog2009 (5) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest - Hence, the communication from the department to the appellants asking them to pay duty and interest with reference to the expiry of the warehousing period in March and August, 2001, is, therefore, legal and proper and such communication cannot be considered as granting extension of the warehousing period since the Commissioner had no power to grant extension beyond six months. As such, the order appealed against does not require any interference. Consequently, the appeal is dismissed - CDM-6/2005 - A-320/KOL/2009 - Dated:- 28-5-2009 - Shri S.S. Kang, Vice-President and Dr. Chittaranjan Satapathy, Member (T) Shri K.K. Acharya, Advocate, for the Appellant. Shri A.K. Sharma, JDR, for the Respondent. [Order per: Chitta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Customs furnished to the appellants the complete Note Sheet Order dated 11/12-6-2004 of the Commissioner (Port). The said order dated 11/12-6-2004 passed in the file relied upon the decision of the Hon'ble Supreme Court in the case of Kesoram Rayon - 1996 (86) E.L.T. 464 (S.C.) and allowed "Deemed Clearance" of the said 25 bonded goods on payment of "duty at the rate that prevailed on the date of expiry of warehousing period during 2001 and interest till the date of clearance." 4. Shri K. K. Acharya, ld. Advocate appearing for the appellants states that the decision of the Hon'ble Supreme Court in the case of Kesoram Rayon (supra) is not applicable to the facts and circumstances of the present appeal. He relies on the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Under the circumstances, the Commissioner has merely pointed out the legal provisions as contained in the Customs Act, 1962 and as interpreted by the Hon'ble Supreme Court in the case of Kesoram Rayon (supra). He further states that the appellants are misrepresenting before the Tribunal by saying that the Commissioner has granted extension of warehousing period up to 30-6-04 as the Commissioner has no such power. 6. After hearing both sides and perusing the case records, legal provisions and the cited case laws, we find that the warehousing periods expired on 8-3-01, 23-8-01 and 31-8-01 respectively. The appellants admittedly did not seek extension of the warehousing period from the Commissioner before such expiry and under the law had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er expiry of the same, the extension is admissible unless the authority have taken coercive measures to recover duty. However, firstly, we find that the appellants have not applied for extension of the warehousing period from the competent authority namely, the Chief Commissioner, who only could have extended the warehousing period beyond six months and secondly, the decision of the Hon'ble Bombay High Court was taken at a time when the decision of the Hon'ble Supreme Court in the case of M/s. Kesoram Rayon (supra) was not available. Similarly, the reliance placed on the Tribunal's decision in the case of CBS Gramophone Records Tapes (India) Ltd. (supra) is of no help to the appellants when the legal position has been clearly enunciated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible for only a stated period; the period is extendible if cause for doing so is shown; and, whether or not the permissible period has been extended, interest on the amount of duty on the warehoused goods is payable for the period subsequent to the permissible period upto their clearance. 12. Section 72 deals with goods improperly removed from a warehouse. Goods are improperly removed from a warehouse under the terms of sub-section (1) if they are removed without clearance under Section 71 [clause (a)]; if they are taken as samples but without payment of duty [clause (c)]; if a warehousing bond has been executed in respect of the goods under Section 59 but they are not satisfactory accounted for [clause (d)]; and if they have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extension, the goods have been deemed to have been improperly removed from the warehouse under Section 72. 15. The decision in the case of D. C. M. and Another v. Union of India cited by ld. Counsel for the appellants dealt with, and upheld, the constitutionality of Section 15(1)(b). It did not deal with a situation where goods continued to remain in a bonded warehouse beyond the permitted period. It does not assist the appellants' case. 16. The permitted period for warehousing the said bales came to an end on 15th September, 1984, but the said bales remained in the bonded warehouse thereafter. The said bales, by reason of the provisions of Section 72, were deemed to have been improperly removed from the bonded warehouse on that day a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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