9911796707
TMI Blog2008 (2) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse of M/s. IBP Ltd. at Budge Budge at the port under the Bill of Entry No. 302(OIL). 3. On 20 th May, 1998, respondent filed Ex bond bill of Entry (to get them de-bonded) for home consumption for a quantity of 5140 M.T. The full amount of duty was paid thereon amounting to Rs.35,75,836/-. The proper officer endorsed on the reverse of the Bills of Entry to the effect that the goods may be released by the Officer-in-charge of the warehouse. The Officer-in-charge, in turn, released the goods and made an endorsement to this effect on the reverse of the Bill of Entry. 4. Ex Bond bill of Entry for home consumption for quantity of 133.156 M.T. was filed on 28 th May, 1998. The full amount of duty was paid thereon amounting to Rs.92,635/-. The proper officer endorsed on the reverse of the Bill of Entry to the effect that the goods may be released by the officer-in-charge of the warehouse. The officer-in-charge, in turn, released the goods and made an endorsement to this effect on the reverse of the Bill of Entry. 5. In view of the fact that SKO is a highly combustible material and cannot be taken out of storage tank to store elsewhere, the respondent made an application to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48,822/- towards Basic and Special Customs Duty on 1000 M.T. of SKO under the Customs Receipt No. 1-1631 dated 25 th of June, 1998. The respondent made a further deposit under protest of Rs.12,78,116/- towards Basic and Special Customs Duty on the quantity of SKO lifted between 2 nd of June, 1998 and 6 th of June, 1998. 9. A show-cause notice was issued by the appellant to the respondent for charging the enhanced rate of duty. In the said show-cause notice, the claim of the appellant was, inter alia, for appropriation of the sum of Rs.12,78,116/- paid towards differential duty on the material removed between 2 nd of June, 1998 and 6 th of June, 1998, appropriation of the sum of Rs.24,48,822/- deposited towards differential duty on 1000 M.T. of SKO and for levy of enhanced rate of duty on the further remaining quantity of SKO. The respondent deposited a further sum of Rs. 62,63,000/- on 3 rd of August, 1998 under protest Basic and Special Customs Duty towards balance quantity of the said material lying in the storage of IBP. Respondent filed his reply to the aforesaid show-cause notice dated 23 rd of July, 1998. 10. The Commissioner of Customs, Calcutta vide his order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submits that the Tribunal did not fall in any error while appreciating the provisions of Section 15(1)(b). According to him, the present case would fall under Section 15(1)(a). By referring to Section 2(25) of the Act, it was contended that the expression "imported goods" means any goods brought in India but does not include goods which had been cleared for home consumption. Since, in the present case, goods had been cleared by the Customs Officers for home consumption and out of charge order was passed, provisions of Section 15(1)(a) would be more appropriately applicable in the present case. 13. Section 15(1) at the relevant time read as under: - "15. Date for determination of rate of duty and tariff valuation of imported goods.- (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, - (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce from the warehouse under Section 68 and the same would not be applicable to the present case. 15. Section 15(1) provides for the rate of duty and tariff valuation applicable to any "imported goods". The term "imported goods" is defined in Section 2(25) of the Act to mean any goods brought into India from a place outside India, but does not include goods, which have been cleared for home consumption. In view of the fact that the imported goods in the present case had been cleared for home consumption on 28 th of May, 1998, they ceased to be imported goods within the meaning of the Act and the provisions of Section 15(1)(b)could not be applicable. 16. The Constitution Bench of this Court, in Bharat Surfactants (Private) Ltd. and Anr. vs. Union of India (UOI) and Anr. [(1989) 4 SCC 21], observed as under: - "...The provisions of Section 15 are clear in themselves. The date on which a Bill of Entry is presented under Section 46 is, in the case of goods entered for home consumption, the date relevant for determining the rate of duty and tariff valuation..."(Para 14). 17. Following the Judgment of the Constitution Bench referred to above, this Court in Shah Devchand Co. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is also no presumption that rate of duty always goes up. It may also go down, in which case, the importer stands to gain." 19. The same principle was laid down by this Court in Dhiraj Lal H. Vohra Ors. vs. Union of India Ors. [1993 Suppl.(3) SCC 453] and in Union of India Ors. vs. Apar Private Ltd. Ors. [(1999) 6 SCC 117]. 20. There is no dispute that where the imported goods are allowed to be warehoused under Section 68 of the Act and are subsequently cleared from the warehouse, the rate as applicable on the date of actual removal of the goods from the warehouse, is applicable. But where the goods are cleared for home consumption under Section 46, the duty payable would be as on the date the goods were cleared for home consumption. In the present case, not only the full duty stood paid by the respondent, but the Customs Officer had also permitted clearance of the same, as is evident from the endorsement made on the back of the bill of entries. As such, the goods cannot be held to be the warehoused goods and the same were allowed to be kept in the warehouse only on account of an application made by the appellants in terms of the provisions of Section 49 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
