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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 ..... bond as prescribed under Section 59(1) of the Customs Act, 1962 (hereinafter called the Act ). The assessing officer was having some doubts about the value of the goods. Even after repeated request of the appellant vide their letters dated 25-3-04, 15-5-04 and 3-7-04, the assessment of the bill of entry could not be completed. On 24-7-04, the appellant explained all the queries raised by the Department and also pleaded that the value could not be enhanced as per Rule 4 of the Customs (Valuation) Rules, 1988. The correspondences continued and without giving any reason, the Assistant 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 Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing officer was directed to issue a demand as per law. 4. In pursuance of the direction, assessing officer issued a demand dated 20-1-06 under Section 72 of the Act against which the appellant filed an appeal before the Commissioner (Appeals). They also filed another appeal against unilateral assessment of the ex-bond bill of entry No. 465/04 dated 15-10-05. These appeals were registered as 18/Cus/Ahd/06 and 17/Cus/Ahd/06 and both were decided by a common order in appeal No. 20 21/2006 dated 28-3-06. 5. M/s. Nirma Ltd. (Nirma) has filed three appeals 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation 15-5-04 Request for assessment of bill of entry 18-5-04, 3-7-04 Query raised, Reply filed by appellant 24-7-04 Further explanation of valuation 6-8-04 Information on catalyst called for by Department 17-8-04 Appellant clarified and requested for assessment of bill of entry - in between several personal meetings held 1-9-04, 30-9-04 AC provisionally assesseed bill of entry Appellant received copy 4-10-04, 8-10-04 Appellant requested AC for reasons Reasons given 14-10-04 Commissioner (Appeals) set aside provisional assessment order by way of remand 12-10-04 In the meantime, 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 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were assessed provisionally. Therefore he submitted that the goods cannot be considered to have been warehoused on 12-10-04 as held by the Commissioner (Appeals) and therefore appellant is not liable to pay interest from 14-06-05 as held by the Commissioner (Appeals). Further he also submits that the bill of entry filed by the appellant for clearance of part quantity of imported goods under DEEC licence should have been allowed. 10. Learned DR on behalf of Revenue submitted that Commissioner having held that goods are to be considered as warehoused with effect from 12-10-04, could not have considered the fact as to whether the assessment of warehousing bill of entry was relevant. It is his submission that action Section 72 of Customs Act, 1962 is totally different to the assessment done under Section 17 or 18 of Customs Act, 1962 on warehousing bill of entry filed under Section 46 of Customs Act, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehoused. If this argument is accepted, the moment the bill of entry was given to the appellant after assessing provisionally and permitting warehousing of the goods, the importer could not have opted for warehousing the goods at all. If it is assumed that bill of entry was not assessed and the date of assessment would be the date of warehousing, it would mean that goods could not have been warehoused at all without assessment. The challenge to the assessment order is a decision made by the appellant and therefore the proper officer could not have known that assessment would be challenged. There are two orders in the bill of entry. One is permission to warehouse the goods and the second is determination of duty leviable. Appellants chose to challenge only the determination of duty leviable and the warehousing part was not challenged. The question arises whether the challenge to assessment would mean 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry for warehousing in respect of imported hydraulic excavator was filed on 23-3-99. But 24-9-99 Customs Authorities ordered that goods be kept detained. On 10-5-99/11-5-99, endorsement was made to the effect that goods release withheld till the orders of the group. The appellant contended that it was the Customs Authorities who had ordered for detaining the goods till receipt of the decision from the group and appellant was not in a position to clear the goods from warehouse. The Tribunal relying upon the decision of the Hon ble Calcutta High Court in the case of Kanchanjanga Pvt. Ltd., held that provisions of Section 51(2) have no applicability in a situation where the goods could not be cleared from the warehouse on account of non passing of orders by the customs officers. When there is no assessed bill of entry for warehousing, the question of filing an ex-bond bill of entry for removal for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lized while assessing the bill of entry for warehousing. No doubt an importer is free to substitute and file a bill of entry for home consumption straightaway after filing the bill of entry and getting an order for warehousing of the goods even if the bill of entry for has not been assessed. However once the bill of entry for warehousing is assessed and the assessment is challenged, the importer has the option of waiting for a conclusion of the challenge made by him. The question is not whether the importer could have filed a bill of entry for home consumption when it is optional. When he chooses not to file a bill of entry and wait for the conclusion of his challenge, he is taking a risk. The department s contention is that the importer was never stopped, from filing ex-bond bill of entry under Section 68 of Customs Act, 1962. In the absence of finalization of the value of the goods and when 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onded warehouse ; and that the rate of duty would be that which was payable on the date of such improper deemed removal from the warehouse. In the case before us, the bonding period expired on 3-8-1996. The notice for duty payment under Section 72 ibid was issued first on 28-11-1996 and then on 31-7-1997. Therefore, the goods were deemed to have been improperly removed on 3-8-1996 and the rate of duty applicable would be on that date. There was no advance licence available on record on that date, hence NIL duty thereunder was not available to the importer. Once the goods have been deemed to be already improperly removed, the customs authorities correctly denied any further request for removal at a later date under the DEEC scheme. 17. In this case also by the time the bill of entry was filed for home consumption, the bond period had expired. As observed by the Tribunal the DEEC scheme cannot be used to override the provisions of Section 72 of Customs Act, 1962 with respect to expiry of bond period. While an advance licence issued after warehousing of goods can be used to clear the goods, there is no provision under exemption policy that this can be done even after the bonding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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