9911796707
TMI Blog2007 (11) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, he spent an amount of Rs. 2,05,329/- on the auction and this was deducted by him from the sum recovered in the auction. 2. On the basis that M/s. Kushang Apparels had imported CTV kits valued at Rs. 1,23,63,259/- (CIF) and filed 6 inward bills of entry on 9th February, 2001, the customs authorities determined the customs duty payable at Rs.67,17,916/-. The said goods were warehoused after execution of the necessary bonds on 1st March, 2001. The goods were not however cleared by M/s. Kushang Apparels within the warehousing period and nor was any extension sought. The customs department issued notices to M/s. Kushang Apparels on 16th April, 2004 under Section 72(1) of the Act calling upon it to pay the customs duty. A reminder was sent on 25th May, 2004. 3. Meanwhile, the petitioner wrote to the customs department seeking permission for clearance of the goods that had to be delivered to M/s. Reliable Overseas who had successfully bid for the goods put to auction by the petitioner in terms of Section 63(2) of the Act. However, the customs authorities insisted that, under Section 150 of the Act, the entire auction proceeds had to be first adjusted towards the customs duty. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming her that the cargo had been delivered to M/s. Reliable Overseas and that the Petitioner was awaiting the final decision in the matter. The Petitioner wrote a reminder to the customs department on 24th February, 2005 requesting that the customs department should pass a speaking order to enable the Petitioner to avail the remedy by way of an appeal. The customs department by its letter dated 4th March, 2005 reiterated that the auction sale held by the Petitioner pursuant to Section 63 of the Act was not acceptable. Accordingly, the Petitioner was once again asked to deposit the remaining amount of Rs. 27,47,146/-. It was further pointed out that if the amount was not so deposited forthwith the bank guarantee furnished would be encashed without any further notice. A further reminder was sent by the Department to the Petitioner on16th March, 2005. 8. On 19th April, 2005 the Additional Commissioner (CCU) informed the petitioner that its representation made on 18th March, 2005 could not be entertained since the Chief Commissioner was of the view that the matter stood settled with the Board's clarification of 17th February, 2005 and the Commissioner was required recover the outstand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house-keeper rent and ware-house charges at the rates fixed under any law for the time being in force or where no rates are so fixed, at such rates as may be fixed by the Commissioner of Customs. (2) If any rent or warehouse charges are not paid within ten days from the date when they became due, the warehouse keeper may, after notice to the owner of the warehoused goods and with the permission of the proper officer cause to be sold (any transfer of the warehoused goods notwithstanding) such sufficient portion of the goods as the warehouse-keeper may Select. 14. It appears that between March 2002 to December 2003 three auctions and one tender sale were attempted but the bid amount was less than the minimum price fixed by the customs authorities. Therefore, the sale by way of auction could not take place. It was in the second round in the sale held in August 2004 in which M/s. Reliable Overseas was the highest bidder at Rs. 41,44,555/-. 15. The relevant provisions of the Act indicate that clearing of the ware-housed goods for home consumption has to be done by the importer of such warehoused goods in terms of Section 68 thereof. Section 68 reads as under: Section 68. Clearance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the warehouse, as the said officer may select. Section 72 comes into play when goods are sought to be improperly removed from the warehouse. In the event of such improper removal the owner of the goods can be asked to 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. 16. It appears that on the facts of the present case the occasion to invoke Section 72(1)(d) would arise only if the goods in respect of which a bond has been executed has not been cleared for home consumption. In such event, the owner of the goods can be asked to pay the entire duty. This obviously does not apply to the warehouse-keeper like the petitioner and no demand of payment for customs duty can be made against the petitioner. 17. Learned counsel for the Revenue has sought to justify the demand raised against the Petitioner in the impugned letters by referring to Section 150 of the Act which reads as under: Section 150. - Procedure for sale of goods and application of sale proceeds. - (1) Where any goods not being confiscated goods are to be sold under any provision of this Act, they shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability of the importer in terms of Section 72 of the Act. It was held by the Supreme Court as under: (para 13 pg 471) "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 ware house 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 on the date of their deemed removal from the warehouse, that is, the date on which the permitted period or its permitted extension came to an end." The above passage does not support the proposition, as suggested by the Revenue, that the warehouse-keeper can be asked to first appropriate the auction proceeds only towards the customs duty. 20. We therefore hold that the Petitioner was justified in recovering the warehousing charges due to it from the auction sale proceeds in terms of Section 63(2) of the Act. The balance amount deposited with the Government Treasury can be adjusted by the customs department towards part payment of customs duty as computed by it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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