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TMI Blog2010 (9) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commissioner of Customs provisionally assessed the bill of entry on 1-9-04 by enhancing the value to the extent of 5.24% of the originally declared value. The copy of the bill of entry was given to the appellant on 30-9-04. The appellant approached the assessing officer for letting them know the reasons for assessing the bill of entry provisionally even after a lapse of over 7 months. They were informed by the assessing officer that the said provisional assessment has been resorted to on the basis of evidence submitted by them. Aggrieved by the aforesaid order, the appellant filed appeal before the Commissioner (Appeals). The Commissioner (Appeals) set aside the provisional assessment order holding that for enhancing the value, valid reasons should have been given. The case was remanded to the adjudicating authority for giving a reasoned order. The department filed an appeal against the remand order of the Commissioner (Appeals) which was rejected by the Hon'ble Tribunal. On 5-5-05, the department informed the appellant that the impugned bill of entry continued to remain provisionally assessed. Not satisfied with such view of the department, the appellant protested and requeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals listed as C/303, 756 & 757/06 against the three orders in appeal discussed above wherein they are challenging the order of the Commissioner (Appeals) that Nirma is liable to pay interest from the date of return of finally assessed warehousing bill of entry and rejection of their claim to clear goods under DEEC licences. Revenue is also in appeal against the decision of the Commissioner (Appeals) denying interest from 11-01-05 in his order No. 96/2005 dated 30-12-05 as demanded in the assessment order. Revenue's appeal is listed as C/352/06. 6. Thus in the appeals filed against the impugned orders two issues arise. The first issue is whether the demand issued by the assessing officer on 20-01-06 under Section 72 of the Act is valid. The department has taken a view that the warehousing period started from the date on which the goods were legally kept in the warehouse whereas the appellant's claim is that the warehousing commenced from the date on which the warehousing bill of entry was reassessed as per the direction of the appellate authority. The Commissioner in the impugned order has held that the warehousing period has expired on 11-1-05 and the appellant had neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntime, department passed out of custom order for depositing goods at public bonded warehouse of which appellant was unaware inspite of appeal pending before Commissioner (Appeals) 12-11-04 Appellant requested for final assessment 7-12-04, 15-12-04 Appellant requested for final assessment 5-1-05 AC called for P.H. on 7-1-05 6-1-05 Requested for issuing show cause notice 11-4-05 Departmental appeal against order of Commissioner (Appeals) rejected by Tribunal 5-5-05 Department issued letter that assessment to be considered provisional and order of Commissioner (Appeals) accepted 19-5-05 Requested for final assessment and explained urgency for delivery 1-6-05 Requested for final assessment 14-6-05, 20-6-05 Letter from Department enclosing triplicate and quadruplicate copies of Bill of Entry. Undated endorsement of provisional assessment. 21-9-05 Appellant filed ex-bond bill of entry along with TR-6 challan of duty payment 30-9-05 Queries regarding licence raised 4-10-05 Reply given by appellant 6-10-05 Appellant requested for assessment at merit value 6-10-05 Superintendent assessed ex-bond bill of entry and demanded duty of Rs. 5,68,17,416/- and inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962. He also drew our attention to the provisions of Section 61 of the Act wherein it has been provided that when warehoused goods remained in a warehouse beyond a period of 90 days, interest shall be payable at such rate or rates not exceeding the rates specified in Section 47. He submits that a plain reading of Section 15, Section 61 and Section 68 of the Act make it clear that interest of warehoused goods is chargeable after 90 days from the date of warehousing of the goods till the payment of duty leviable on such goods on the date of presentation ex-bond bill of entry for clearance for home consumption. 11. Before we proceed, it would be worthwhile to consider the relevant provisions of the Act. According to Section 2 of the Act, "assessment" includes, provisional assessment, re-assessment and any order of assessment in which the duty assessed is nil. Section 17 of the Act provides that after examination and testing of the goods and after getting the relevant details, the assessing officer may assess the duty leviable on the goods. Section 18 of the Act provides for provisional assessment. Section 15 of the Act provides the date for determination of rate of duty and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... automatically that there was a challenge to warehousing. This also cannot be accepted in view of the fact that it was the importer who warehoused the goods and not the department. This being the position, we cannot find fault with the observation of the Commissioner that in view of the definition of warehoused goods which is only that in respect of goods deposited in the warehouse, the date of deposit in the warehouse would be relevant for the purpose of determination of date of warehousing. Therefore the decision of the Commissioner that goods have to be treated as warehoused on 12-10-04 cannot be faulted with. 13. Once it is held that goods are considered to have been warehoused on 12-10-04, in the normal course the interest becomes leviable after three months from the date of warehousing namely 11-1-06. This is the ground on which an order was issued by the department to the importer to pay interest. While goods can be warehoused even while the assessment is under challenge, goods cannot be cleared from warehouse unless an ex-bond bill of entry is filed. When the assessment of bill of entry for warehousing has been challenged and is pending, as rightly held by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r home consumption from warehouse does not arise and in view of the decision of the Hon'ble High Court of Calcutta, it becomes necessary to consider whether the importer was at fault or responsible for the delay. In view of the fact that the provisional assessment order was set aside and another fresh order was passed subsequently, we cannot find fault with the importer for the delay. Once importer is not responsible for the delay, the period during which the importer could not have filed bill of entry for home consumption has to be excluded which is what has been done by the Commissioner (Appeals). Therefore while the date of warehousing has to be considered as 12-10-04 only as held by learned Commissioner (Appeals), the date from which the interest would start accruing would be the date on which the bill of entry for warehousing was finally assessed and enabled the importer to file ex-bond bill of entry. In fact importer could have taken the precaution of filing an application for extension of warehousing period within three months from the date of warehousing which they failed to do. Even after the assessed bill of entry was returned, the importer did not even make an applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the importer had not accepted the value enhancement made by the original adjudicating authority and had challenged the same, it cannot be said that there was a bill of entry duly assessed for warehousing. When value of the goods is not available and has been under challenge, the question of filing a bill of entry for home consumption does not arise. Further we also find no merit in the contention of the department that the Commissioner (Appeals) had no power to waive the interest after the period from 13-01-05. As already observed by us, the Commissioner had relied upon the decision of the Hon'ble High Court of Calcutta and the decision of this Tribunal while arriving at this conclusion. He has not exercised the power of the Board and waived the interest. What he has done is to hold that no interest is leviable. There is a great difference between a conclusion that no interest is leviable and the grant of waiver of interest. Therefore we do not find any merit in this contention also. 16. As regards the appellant's request for permission to file bill of entry by utilizing advance licences, we find that the Commissioner (Appeals) has relied upon the decision of the Hon'ble S ..... 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