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TMI Blog2009 (4) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... eir contentions. Accordingly, by the impugned order, the Commissioner of Central Excise has confirmed the demand of duty to the tune of Rs. 3,99,255/-, has directed payment of interest in terms of Section 28AB of the Customs Act, 1962, and has ordered confiscation of the imported goods to the tune of 264 packages in number valued Rs. 48,79,776/- seized from the premises other than approved warehouse were confiscated under Section 111 of the Customs Act, 1962 while giving option for redemption on payment of fine of Rs. 2,00,000/-. Further, the demand for customs duty to the tune of Rs. 39,03,821/- has also been confirmed under Section 71 read with proviso to Section 28A of the Customs Act, 1962 and the appellant has been directed to pay interest amounting to Rs. 18,88,425/- on 264 packages from the date of warehousing till date of detection of the shortage in terms of Section 71, and further interest on the duty in terms of Section 28AB of the Customs Act, 1962 from the date of enforcement of the said Section till the date of actual payment of duty and penalty of Rs. 1,00,000/-. 3. The facts of the case are that, the appellants had imported 595 packages containing second hand Stee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Melting Wire Industries [2008 (231) E.L.T. 22 (S.C.) = 2008 (12) S.T.R. 416 (S.C.)] while drawing our attention to the Circular No. 31/97-Cus., dated 14-8-1997. 5. While assailing the impugned order on the above stated ground, learned advocate for the appellants submitted that, it was not open to the authorities below to ignore the Circular dated 12th July, 1989 and levy duty in terms of Section 15(1)(b). He further submitted that, Section 15(1)(b) is attracted only in cases where the goods are cleared under Section 68 and not in terms of Section 71. Referring to Section 15(1)(c), it was contended on behalf of the appellants that in case of all the goods, which were removed from the warehouse otherwise then under Section 68, the valuation for the purpose of determination of duty will have to be with reference to the date of payment of duty. 6. The learned DR, on the other hand, has submitted that, though the Circulars issued by the Department are binding upon the Department and the Officers acting under the said Statute, the Courts and Tribunals cannot ignore the law laid down by the Apex Court and the High Courts. Besides, the Circular issued on 14th August, 1997 makes it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lties, 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 has been made by the proper officer. The first proviso states that, the owner of any warehoused goods may, at any time before an order for clearance of goods for home consumption has been made in respect of such goods, relinquish his title to the goods upon payment of rent, interest, other charges and penalties that may be payable in respect of the goods and upon such relinquishment, he shall not be liable to pay duty thereon. The second proviso provides that, further that the owner of any such warehoused goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force. The plain reading of Section 68 would disclose that it relates to the clearance of warehoused goods under an order issued by appropriate officer. The order contemplated thereunder is, on payment of duty and other charges. In other words, the clearance of goods under Section 68 is only after discharge of taxable liability in relation to such goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. 12. The provisions of law comprised under this Section in Chapter IX of the said Act, therefore, clearly disclose that the goods once warehoused cannot be removed therefrom otherwise except by following the procedure prescribed under the said Act and any removal of such goods otherwise then following the procedure under the said Act would amount to illegal removal of the goods from the warehouse. The provisions also provide that the goods shall be stored in the warehouse for a period for which it is permitted and not beyond the said period. 13. The Apex Court in the case of Kesoram Rayon (supra) after taking into consideration various provisions of the Customs Act including Sections 15, 68 and 71, held that, warehousing is permissible for a period specified under the order permitting warehousing of the goods and the period is extendable if cause for doing so is shown; and, whenever the permissible period is extended, interest on the amount of duty on the warehoused goods h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled by the decision of the Apex Court in the case of Ratan Melting Wire Industries (supra). It has been clearly held therein that : Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law. The law, therefore, is well settled to the effect that Circulars issued by the Government cannot override the statutory provisions or the law declared by the Apex Court. 16. It cannot be disputed that ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 264 packages were removed without clearance from the warehouse was also clearly admitted by the appellants under their letter dated 27th August, 1992. 18. In the background of above facts, we do not find any illegality committed by the authorities below in the determination of rate of duty in terms of Section 15(1)(b) of the said Act. 19. Faint attempt was made to contend that there was no question of removal of the goods. Very fact that there is clear admission on the part of the respondent that the removal of goods without following the prescribed procedure bearing in mind the provisions of Sections 71 72, Chapter IX of the said Act, the contention in this regard is to be rejected as being without any substance and does not warrant even consideration. 20. The decision of the Apex Court in the case of Simplex Castings Ltd. (supra) was in relation to the appeal which was sought to be preferred by the Department against the order of the Original Authority in spite of the fact that the order of the Original Authority was inconsonance with the Circular dated 12th July, 1989. It is pertinent to note that the assessment order of the Assistant Collector of Customs was passed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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