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TMI Blog2003 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... iles for lining panels and ceiling panels under warehousing BE No. 4088 dt. 20-9-2001. They were permitted to warehouse the said goods accepting their undertaking that the said goods shall be used exclusively for the purpose of inbond manufacture of Ship-010 under construction. The said goods were released in full from the bonded warehouse on 7-12-2001 and 6-3-2002 against issue applications. They were taken directly on board the vessel 010 under construction, for use in the manufacturing activity. Fitment certificate, with specific certification that the warehoused goods requisitioned and received by the Carpentry Shop had actually been fitted on the said vessel 010 under construction, was filed on 20-5-2002. According to the SCN, Shri K. Unni Abraham, Sr. Manager (Outfit) in-charge of Carpentry Shop had, in his statement dt. 12-9-2002, deposed, inter alia, that even though fitment certificate was issued for the entire quantity covered by the said two issue applications, actually a substantial quantity of the said warehoused goods so issued was left behind as balance on board the said vessel under construction, and that they were not returned back to the bonded stores and the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded area, it was returned on the same day, on the company being informed of its legal obligations, that the interception by Customs took place at the time of its return into bonded area, and that even the rate of duty chargeable on the said materials ought to be the rate applicable for the waste/scrap, rather than the rate applicable to the original item imported. It is also pleaded that in spite of all these facts, the applicant is prepared to accept the duty liability of Rs. 2,83,468/- as demanded in the SCN, in full settlement, without having to undergo adjudication/appellate proceedings. Apart from indicating that the admitted amount has already been paid vide DD No. 223782 dt. 28-4-2003, a prayer is made for waiver of penal action including penalty, interest and prosecution of the applicant and his officers. 5. The applicant was heard on 3-7-2003. The applicants were represented by Shri A.K. Jayashankar, Advocate, M/s. Menon Pai, Ernakulam. The Respondent Commissioner was represented by Shri Sarat Chandran, Supdt. Customs, Cochin. 6. During the hearing, the Advocate recapitulated the facts of the case and contended that the application satisfies all the conditions of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed additional written submission vide their letter dt. 11-7-2003. It is explained, inter alia, that the applicant has filed the ex-bond BE in respect of the imported materials used in the vessel in question. Since the said BE is prepared on the basis of fitment certificate issued by the applicant, there will not be any difference in the quantity mentioned therein compared with what is mentioned in the fitment certificates. It is, therefore, pleaded that the applicant has filed a BE, that a SCN has been issued to them by the proper officer, and that the additional duty admitted exceeds Rs. 2 lakhs. It is contended Subsequently, on account of a breach in the bond conditions as regards a small quantity of the imported material, a SCN was issued to the applicant specifying therein that the applicant was liable to pay duty on the imported goods so cleared from the bonded premises without permission. The non adherence to the conditions of the notfn. led to the quantity of goods cleared outside bonded premises becoming liable to duty, quantified at Rs. 2,83,468/- which amount would not have been payable had the goods remained in the bonded premises and used for the purposes contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity has been disclosed and accepted in the application consequent to admission of breach of the said post-importation conditions. The additional disclosure so made, incidentally, is the entire amount indicated in the SCN as liable and recoverable, and also exceeds Rs. 2 lakhs as required u/s 127B(1). 12. On the other hand, the objection of the Revenue to the admission of the application is that this is a case of non duty paid goods attempted to be removed for private purposes in a clandestine manner , after filing a fitment certificate for the entire quantity as having been used in the manufacturing activity of the vessel concerned . As a result, it is contended that this is a case of clandestine removal, and that duty is accordingly demanded in the SCN under Sec. 72 of the Customs Act, 1962. It is also contended that the filing of BE at the time of import has no relevance to the present proceedings. 13. However, the Bench is not persuaded to accept these contentions of Revenue. It is not correct to state that the BE filed at the time of import is not relevant. Though it was a warehousing BE, the goods in question have been assessed to duty on the said BE at nil rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional disclosure of duty liability over and above that disclosed in the B/E before the proper officer, even though the goods on which duty is admitted, had been seized outside bonded area. 15. As earlier mentioned above, the Bench finds that the Revenue has relied on the decision of Hon ble Madras High Court, in the case of Commissioner of Customs (Air), Chennai v. The Customs Central Excise Settlement Commission and others as one of the grounds to contest admission. It has been pleaded that the instant case is one of clandestine removal without payment of duty and is squarely covered by the aforesaid decision of Hon ble Madras High Court. However, the Bench finds that the instant case is not on all fours with the case decided by the Hon ble High Court of Madras. In the case before the Madras High Court, the goods involved had not been included in the BE filed by the importer. According to para 13 of the said judgment, the department found that as against 300 Acer CD ROM Drive as declared in the B/E, the consignment consisted of 736 pieces of various models of mobile phones with chargers also. The Hon ble High Court following the ratio of Supreme Court judgment in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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