9911796707
TMI Blog2022 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods are not exported etc. and the goods are also allowed to be removed under a bond. If we have to accept what Mr. Mishra submits, the Act and the Rules would not have provided for such eventualities in case goods are destroyed before its removal from the place of manufacturer or provide for place of removal to mean a warehouse or any other place where the goods are permitted to be deposited without payment of duty or the bond would not provide for due arrival of the goods at the place of export and their export therefrom under custom supervision. The goods have been satisfactorily accounted for and petitioner is entitled to the Certificate granting remission of excise duty for the goods, destroyed in the fire - Petition disposed off. - WRIT PETITION NO. 164 OF 2007 - - - Dated:- 23-6-2022 - K. R. SHRIRAM PRITHVIRAJ K. CHAVAN, J.J. Mr. Anil Balani for petitioner Mr. Satyaprakash Sharma a/w Mr. Amit Singh for respondents Judgement : (Per K.R. Shriram, J.) 1. Petition came to be admitted on 15th February, 2007 and interim relief in terms of prayer clause (c) was granted. 2. Petitioner is impugning an order dated 17th October, 2006 passed by respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,276/- 6. The goods covered by the above mentioned shipping bills were carted at Shed No.4, CFS, Dronagiri Node of CWC, which is part of the Jawaharlal Nehru Port and also an Inland Container Depot of J.N. Port appointed under Section 7(AA) of the Customs Act, 1962. Thus, it is an approved place for holding of export goods. The goods were examined by the Proper Officer of Customs. After satisfying himself that the goods are not prohibited and the exporter had complied with all the provisions of Customs Act, the Custom Officer passed an order under Section 51 of the Customs Act, known as Let Export order (LEO), permitting clearance and loading of the goods for export. 7. Unfortunately, there was a devastating fire on 7th June, 2002 in Shed No.4 at CWC, CFS, Dronagiri Node. The entire shed was gutted in the fire and all the goods covered under three shipping bills and four ARE-1 s, which were stored in the shed at the time of fire, were totally destroyed / lost along with goods of other exporters. The CWS, CFS has issued certificate of loss of cargo in fire on 7th June, 2002. The police and fire brigade also issued appropriate certificate. Petitioner, by a lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises, as may be approved by the Commissioner. It also provides that any material may be removed without payment of duty from a factory of the producer or the manufacturer or the warehouse or any other premises, for use in the manufacture or processing of goods which are exported, as may be approved by the Commissioner. The export under these rules was also subject to such conditions, safeguards and procedure to be notified by the Board. The conditions and procedure was prescribed in Notification No.42/2001 Central Excise (N.T.) dated 26th June, 2001. The conditions and procedure for export of all excisable goods, except to Nepal and Bhutan, without payment of duty provided that the exporter shall furnish a general bond in the specified form specified in Annexure-I to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise having jurisdiction in a sum equal at least to the duty chargeable on the goods, with such surety or sufficient security, as such officers may approve for the due arrival thereof at the place of export and their export therefrom under Customs or as the case may be postal supervision. The condition also provide for the goods to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Central Excise or Maritime Commissioner may in any particular case allow; (iii) that when the export is from a place other than registered factory or warehouse, the excisable goods are in original packed condition and identifiable as to their origin; (iv) that exports of mineral oil products falling under Chapter 27 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as stores for consumption on board of any aircraft on foreign run shall be subject to conditions and limitations, to be applied mutatis mutandis, as notified in the Ministry of Finance (Department of Revenue), Notification No.40/2001-Central Excise (N.T.), dated 26th June, 2001 issued under rule 18 of Central Excise (No.2) Rules, 2001. 2. Procedure: (i) Procedure for removal without payment of duty under this notification. (a) After furnishing bond, a merchant-exporter shall obtain certificates in Form CT-1 specified in Annexure-III issued by the Superintendent of Central Excise having jurisdiction over the factory or warehouse or approved premises or Maritime Commissioner or such other officer as may be authorised by the Board on this behalf and on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in the application, with whom the exporter has furnished bond or a letter of undertaking. (d) The exporter shall use the quintuplicate copy for the purposes of claiming any other export incentive. (v) Cancellation of applications : (a) if the excisable goods are not exported, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise or Maritime Commissioner or such other officer as authorised by the Board on this behalf, as the case may be, to whom the bond or letter of understanding has been furnished, may, on written request for cancellation of application, cancel said application and allow diversion of goods for consumption in India subject to the sub-para (b); (b) The exporter shall pay the duty as specified in the application along with interest at the rate of twenty four percent per annum on such duty from the date of removal for export from the factory or warehouse or any other approved premises till the date of payment of duty. 11. Rule 4 of the Central Excise Rules also provides that every person who produces or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before removal. Para 6.3 reads as under : 6.3. Govt. further notes that the applicants have not produced any remission certificate in terms of rule 21 of the Central Excise rules, 2002, Gov. also notes that there is no provision in the Central Excise Rules for remission of duty in case goods is lost or destroyed after clearance from the manufacturing place or warehouse. In the instant case the applicants have cleared the impugned goods under bond without payment of duty for export and in terms of rule 19 of the Central Excise Rules 2002 r/w Notification issued thereunder the applicants should have furnished proof of export before the proper authority. However, admittedly in the case as discussed above the applicants have not furnished proof of export before the proper authority in terms of rule 19 of the Central Excise Rules, 2002. Hence, order of demanding duty cannot be assailed. 14. Section 4 (3)(c) of the Central Excise Act defines place of removal , which (as it was then in force, prior to amendment by Act 32 of 2003) reads as under :- Sec. 4 (3)(c) place of removal means (i) a factory or any other place or premises of production or manufacture of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der customs supervision after Let Export Order has been issued. The bond cannot be discharged only for goods not accounted for and in this case, in our view, the goods have been accounted for since there are certificates issued by CWC, CFS, the police as well as fire brigade that the goods covered under the four ARE-1 s and three shipping bills have been destroyed by fire. Further, it is not respondent s case either that goods have been diverted by petitioner. 17. Mr. Sharma appearing for respondents states that the duty was on the manufacturer, which is fastened as soon as the goods are manufactured, payable at the time of removal from factory or warehouse of manufacturer. Mr. Sharma in fairness also agreed that the duty is on manufacturer but collected on removal and that would apply to place from where the sale takes place or the ownership of goods is transferred by seller to buyer at the time of removal from such place. Since the bond given by the exporter also gives an undertaking for the due arrival of the goods at the place of export and the export therefrom under customs supervision, the place from where the sale would take or the ownership of the goods will be transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the factory itself. It is for that reason, the Act and the Rules framed thereunder provide for satisfactorily accounting for, in case the goods are not exported etc. and the goods are also allowed to be removed under a bond. If we have to accept what Mr. Mishra submits, the Act and the Rules would not have provided for such eventualities in case goods are destroyed before its removal from the place of manufacturer or provide for place of removal to mean a warehouse or any other place where the goods are permitted to be deposited without payment of duty or the bond would not provide for due arrival of the goods at the place of export and their export therefrom under custom supervision. 20. In the circumstances, in our view, the goods have been satisfactorily accounted for and petitioner is entitled to the Certificate granting remission of excise duty for the goods, destroyed in the fire. Therefore, we allow the petition in terms of prayer clauses (a) and (b), which read as under : (a) That this Hon ble Court be pleased to issue a Writ of Certiorari or a Writ, or order or direction in the nature of Certiorari calling for the records and papers in the Petitioners case relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
