9911796707
TMI Blog2008 (12) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... Das, Member (J) Shri M.P. Singh, Advocate, for the Appellant. Shri L.B. Yadav, DR, for the Respondent. [Order per : M. Veeraiyan, Member (T)]. - Appeal No. C/169 of 2006 is by the Department against the Order-in-appeal No. 446(MPM)/CE/JP-I/2005 dated 6-12-2005. 1.2 Appeal No. C/30 of 2007 is by the party against the order of the Commissioner (Appeal) No. 248/2006 / KDL/Cus / Commissioner (A)/Ahd. dated 28-9-06. This appeal has been ordered to be listed along with appeal No. C/169/06 by Tribunal's Stay Order No. S-97/07-Cus., dated 14-2-07 in Appeal No. C/30 of 2007. 1.3 Both the cases are interconnected and involve the same party and involve common issues and accordingly, are being dealt with by a common order. 2. Heard both sides. 3.1 The relevant facts, in brief, in Appeal No. C/169 of 2006 are as follows: (a) M/s. Paper Fab International (respondent in Appeal No. C/169/06, and appellant in Appeal No. C/30/07) is a 100% EOU having their unit at 10-A,RIICO Industrial Area, Khushkhern, Alwar and are engaged in the manufacture of Terry towels falling under Heading No. 6302 of the Schedule to the Central Excise Tariff Act, 1985. (b) They imported 10114 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 (77) E.L.T. 310 (Tri.). (b) For removal of the goods from the Port of import to any warehouse no exemption Notification need to be claimed. The entire premise pf the 100% EOU is a warehouse under the Customs Act. The HSD has been used within the factory in the manufacture under bond and no quantity of HSD has been issued out of said warehouse. The goods were not removed from the warehouse, no ex-bond bill of entry for removal of the goods from the warehouse has been filed or assessed. Under these circumstances, the question of any short levy or non-levy does not arise. (c) The duty liability arises only when the goods are removed from the warehouse. The rate of duty applicable to such removal shall be as on the date of removal which could be more than or less than those at the time of import. Since there is no physical removal from the warehouse, the question of demand of duty does not arise. (d) Only when the goods are removed from the warehouse, duty requires to be paid and at that time, Notification 52/03 requires to be applied. If the finished goods is manufactured in 100% EOU is cleared for other than export then the applicable duty shall be payable. (e) He relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for short levy or refund on reassessment will be with the proper officer granting ex-bond clearance. This view of the Tribunal finds support in the Madras High Court decision in the case of Collector of Customs, Madras v. Tungabhadra Fibres Ltd., reported in 1994 (71) E.L.T. 655 (Mad.). The High Court had held that the assessment of goods into bond on a warehousing Bill of Entry is only tentative and such assessment being made only for the purpose of execution of warehousing bond, is not conclusive. Para 6 of the Madras High Court decision reads as follows:- * * * * * * * * * Therefore, the reservations expressed by the referring Bench in the present case, about the aptness of the Ferro Alloys Corporation Ltd. decision as regards the jurisdiction in a situation under the warehousing provisions of the Customs Act, 1962, are well-founded. For the reasons discussed above, it has to be held that in the circumstances of this case the jurisdiction for raising demand for short levy will be with the proper officer having jurisdiction over the E.O.U. and not the Custom House where the goods were assessed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the said decision are as follows: "4 We find that the impugned goods were assessed on into bond Bills of Entry. The department has no case that the impugned goods were removed from the warehouse or were not used in the production of articles exported. As the impugned goods were not cleared from the warehouse, there was no collection of duty on the goods entailing, short levy. Therefore, there cannot be any demand under Section 28 of the Customs Act. The demand is therefore not sustainable. As there is no finding that the appellant committed any act of omission or commission rendering the goods liable for confiscation under Section 111 of the Customs Act, we find that no penalty is imposable on the appellants under Section 112 of the Act. 5. In Priya Blue Industries Ltd. v. CC (Preventive) [2004 (172) E.L.T. 145 (S.C.)], the Apex Court held that once an order of assessment was passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands. In the instant case, there was no such review / appeal of the assessment by the competent authority, if such a review was require ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
