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TMI Blog2014 (10) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... title was sent the appellants have not made payment of rent, interest and other charges and penalties. We also note that the second proviso to Section 68 of the Customs Act, 1962 which was introduced with effect from 18.4.2006 also provides that relinquishment shall not be allowed where offence appears to have been committed. In this case in the impugned order goods have been held to be confiscated under Section 111 (m) of the Customs Act, 1962 and are confiscated. - Decided against assessee. - Appeal No.C/226/07 - Final Order No. A/1375/2014-WZB/C-I(CSTB) - Dated:- 21-8-2014 - S S Kang and P K Jain, JJ. For the Appellant : Mr. Vipin Kumar Jain with Mr. Krishan Kumar, Advs. For the Respondent : Mr. Navneet, Additional Commissioner (AR) JUDGEMENT Per: P.K. Jain 1. Brief facts of the case are that the appellant imported eight consignments of plant and machinery relating to acrylic fibre/polymerization/extrusion during October 1994 to September, 1995. The said goods covered by six Bills of Entry were cleared and kept in a Bonded Warehouse while the goods covered by two other Bills of Entry were in Docks area. Later on intelligence was received that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of EOU period not withstanding; (iii) there is no apparent serious misdemour in the absence of an Inspection Certificate; the same could be produced before the entire imports were made; (iv) the ground taken that the adjudicator has not arrived at a finding on the charges at paragraph 20 of the Show Cause Notice induces us for setting aside of the order and remitting the same back for de novo adjudication; (v) Since de novo adjudication is being ordered, we keep the issue of penalty, if any, to be imposed and the question of confiscation and duty liabilities open for redetermination. 2. In pursuance of the said direction of the Tribunal, the impugned order dated 30.11.2006 has been passed. 3. During the adjudication process in 2006, the appellant submitted a letter to the Commissioner of Customs relinquishing the title of the goods. The adjudicating authority in the impugned order has accepted the relinquishment in respect of the two Bills of Entry wherein the goods were not cleared from the warehouse and were lying in the docks area. However, in respect of the remaining six Bills of Entry the request for relinquishing the title was rejected. A duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request may be allowed even if permitted period for bonding has expired and the demand notice has been issued. The learned advocate contended that the same logic can be applicable for relinquishing the title of the goods. The learned advocate also quoted this Tribunal's decision in thE case of RPG Cables Ltd vs CC (Imports), Bombay reported dated 1.3.2007 to support this contention. The learned advocate submitted that in this case this Tribunal has taken a view that the importer is entitled to relinquish even after expiry of warehousing period as no order for clearance of the goods for home consumption has been passed. The learned advocate for the appellant argued that the situation in the present case is precisely the same. 5. The learned A.R., on the other hand, took us through Sections 61, 68 and 72 of the Customs Act, 1962. He argued that once the warehousing period is over as per Section 72 of the Customs Act, 1962 the goods are deemed to be improperly removed from warehouse and therefore the goods cannot be considered as warehoused goods. Since the goods are not warehoused goods proviso to Section 68 of the Customs Act, 1962 is not applicable at all. The learned A.R. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, the appellants are required to pay the duty and benefits under Section 23 of the Customs Act, 1962 are not applicable. The learned A.R. further stated that the Hon'ble Karnataka High Court in the case of PSI Data Systems Ltd vs Assistant Commissioner of Customs, Bangalore -2004 (163) ELT 302 (Kar) had taken a view that relinquishment of title of the goods cannot be permitted after lapse of number of years and discussed Section 23 (2) and Section 68 of the Customs Act, 1962. In view of the said position, the learned A.R. submitted that the appellants are required to pay the duty, interest and penalty as imposed under the impugned order. 6. We have considered the rival submissions. The undisputed fact in the present case are that the goods were warehoused during the period October 1994 to September 1995. The goods were warehoused for a period of 90 days. Appellant did not ask for any extension of time. At the relevant time Section 68 of the Customs Act, 1962 did not have any provision for relinquishing title before the goods are cleared for home consumption. Section 68 of the Customs Act, 1962 was amended on 14.5.2003 wherein a proviso was added to Section 68. The said Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay duty thereon.] * w.e.f. 14.5.2003 2[Provided 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.]* w.e.f. 18.4.2006 Section 72. Goods improperly removed from warehouse, etc . - (1) In any of the following cases, that is to say, - (a) where any warehoused goods are removed from a warehouse in contravention of section 71; (b) where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under section 61 to remain in a warehouse; (c) where any warehoused goods have been taken under section 64 as samples without payment of duty; (d) where any goods in respect of which a bond has been executed under section 59 and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer, the proper officer may demand, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 satisfactorily accounted for [clause (d)]; and if they have not been removed from the warehouse on the expiration of the permitted period or its permitted extension [clause (b)]. In all such cases the Customs Officer is empowered to demand, and the importer shall pay, the full amount of duty chargeable on the goods and interest, penalties, rent and other charges thereon. If payment as demanded is not made, it is recoverable by sale of other goods of the importer in the warehouse. 13 . Goods which are not removed from a warehouse within the permissible period are treated as goods improperly removed from the warehouse. Such improper removal takes place when the goods remain in the warehouse beyond the permitted period or its permitted extension. The importer of the goods may be called upon to pay Customs duty on them and, necessarily, it would be payable at the rate applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be allowed on payment of duty against the EPGC Licence. 12. The second judgment quoted by the learned advocate for the appellant is in the case of RPG Cables Ltd (supra). It is seen that this Tribunal distinguished the case law in the case of Videocon International Ltd (supra) on the reasoning that the Hon'ble High Court has no occasion to consider the provisions of Section 68 ibid and extended the benefit. 13. The learned advocate for the appellant has also submitted Circular No. 3/2003-Cus dated 14.1.2003 wherein Board has permitted re-export of goods even if period of bonding expired. We have gone through the said Circular and we observe that in the Circular no analysis has been done of the provisions of Section 72 (1) (b). We also observe that the said Circular does not take into account the judgment of the Hon'ble Bombay High Court in the case of Videocon International Ltd (supra), even though the said Circular was issued subsequent to the said judgment. In view of the law as laid down by the Hon'ble Bombay High Court in the case of Videocon International Ltd (supra), we do not think it appropriate to go into this Circular. 14. We have gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption and Section 69 deals with the clearance of warehoused goods for exportation. Normally what is expected in the case of warehoused goods is that either the goods will be cleared for home consumption or will be exported. In our view, a reasoning following by the Hon'ble High Court for Section 69 would equally be applicable for Section 68. 16. We also note that Hon'ble Karnataka High Court in the case of Decorative Laminates (supra) relating to a case where the appellant wanted remission of duty on the goods warehoused and which were lying in the warehouse beyond the permitted period, the Hon'ble High Court of Karnataka observed as under: 8. From the material on records, it is not in dispute that the respondent had imported certain materials for the purpose of manufacture of furniture and that the said goods were in the warehouse from the date of its import. It is also not in dispute that the said goods have not been cleared by the respondent after paying the requisite customs duty. However, the extension sought for continuing in the warehouse was granted by the authorities but even after the expiry of the said date, the goods were not removed from the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been the consistent view of the Hon'ble High Courts that once the warehousing period is over the owner of the goods is required to pay the Customs duty leviable on the date of expiry of the warehousing period irrespective of whether the goods are in good condition or not or owner of goods wants to re-export or do anything else. In fact, the Hon'ble High Court of Karnataka in the case of PSI Data Systems Ltd was examining the case of relinquishment of the title under Section 68 and has observed as under:- We agree with the reasoning adopted by the learned Single Judge. The appellant could not be allowed to relinquish the title in goods after the lapse of a number of years. Sections 23(2) and 86 of Customs Act read jointly leads to the conclusion that after the determination of the duty, it is not possible to relinquish the title in goods. After the lapse of time, for keeping the goods in the warehouse it has to be presumed that the importer is no longer interested in keeping the goods in the warehouse and the customs authorities are within their jurisdiction to determine the duty. The order of determination of duty not being in dispute, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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