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TMI Blog2008 (12) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 - - - Dated:- 18-12-2008 - Prabha Sridevan and K.K. Sasidharan, JJ. REPRESENTED BY : S/Shri T.S. Sivagnanam, SCG, for the Appellant. Shri C. Saravanan, Counsel, for the Respondent. [Judgment per : Prabha Sridevan, J.]. - The respondent imported 10800 of HDPL on 11-1-2000 under an Open General Licence; it bonded the goods in a warehouse. On 9-2-2000, the inbound bill of entry was filed. On 26-5-2000, it obtained by transfer an Advance Licence under the DEEC Scheme in No. 03026397 dated 19-11-1998 issued in the name of Indco Remedies Ltd., Bombay. On 18-11-2000, the above DEEC Licence expired. The importer filed the Ex-Bond bill of Entry on 8-12-2000, for assessment of the imported goods. Since the validity of the licence had expired the Deputy Commissioner of Customs refused to grant the benefit of the Customs Notification No. 31 of 1997 and held that the goods should be assessed on merits. On appeal, the CEGAT held that the only issue that should be considered is whether the material imported is covered by the licence, and allowed the appeal holding that as per the "Notification in question (that) the material imported should be covered by DEEC licence which follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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) in the case of any other goods, on the date of payment of duty : Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards. (2) The provisions of this section, shall not apply to baggage and goods imported by post." Section 68 of the Act reads as follows : "68. Clearance of warehoused goods for home consumption. - The importer of any warehoused goods may clear them for home consumption if - (a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed form; (b) the import duty leviable on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for home consumption has been made by the proper officer." 7. The following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistry's Circular No. 14/94-Customs dated 1-6-1994 (F. No. 605/139/92-DBK) that the Licences under DEEC Book would be debited by the Custom Houses at the Port of Registration, would continue to apply as before. The Port of Clearance would debit the TRA received by them after the goods have been cleared for duty concession. The logging of the DEEC Books in all such cases would also continue to be done at the Port of Registration as per existing instructions in Ministry's Circulars issued from time to time." 8. Since there was delay in issuing TRA and representations were received in this regard, Circular No. 117 of 1995 was issued. This reads as follows : "Please refer to the Ministry's earlier Circular No. 12/95-Cus., dated 20-2-1995 and Circular No. 51/95-Cus., dated 24th May, 1995 regarding issue of Telegraphic Release Advice (TRA) for imports under DEEC scheme. Some representations have been received from the trade circles complaining about delay in issue of TRA. Reasons cited for delay in the representations are that the Customs Houses insist on furnishing the following documents by the importer :- (a) Production of advance licence duly registered with the Customs House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby exempts materials imported into India, against an Advance Licence issued on or after 1st April, 1997 (hereinafter referred to as to the said licence), from the whole of the duty of customs leviable thereon which is specified in First Schedule to the Customs Tariff Act, 1975 (51 of 1975) subject to the following conditions, namely, (iii) that the said licence and the said certificate are produced before proper officer of the customs (at the time) of clearance of imported materials for debit; (viii) that where benefit of this notification is sought by a person other than the licencee, such benefit shall be allowed against the said licence and the said certificate only if it bears endorsement of transferability by the Licensing Authority : Provided that benefit of this notification shall not allowed (sic) to a transferee of the licence for import of Acetic Anhydride, Ephedrine and Pseudophedrine.….." The rest of the terms are not relevant. 10. Duty Exemption Scheme provides for transferability of licences under Paragraph 7.27. It says, "upon endorsement of transferability, a duty free licence shall be valid for the balance period of validity or for a period of six mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use are exigible to duty, and they are so kept in the warehouse for more than the permitted period, and the said goods are cleared subsequently and duty paid, interest is chargeable for the period of delay in the clearance of the goods. Since the goods warehoused are kept for a longer period such delay entails delayed payment of duty payable and so interest is charged for such delayed payment of duty." "14. In the above backdrop, let us consider the scope and content of section 61(2) of the Act as it existed at the relevant time. Section 61(1) prescribes the period during which the goods imported may remain in the warehouse. The normal period in different cases are provided therein. Extension of time in special cases is also provided. If the goods imported remain in warehouse beyond the period provided or extended under Section 61(1), the consequences are specified in Section 61(2) of the Act. As per the provisions of the Act duty is payable (only) when the goods are cleared. If the goods are not cleared within the time granted under Section 61(1) of the Act, and the goods are cleared later, the payment of duty exigible on the goods gets automatically delayed. It is to meet the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house. There can be no manner of doubt that the term 'actual removal' is even more stronger than the term 'physical removal' and the intention of the legislature in using these words clearly stipulates the actual removal of the goods from the warehouse. The rate of duty and tariff valuation on the imported goods may be changed from time to time and as such the legislature has clearly expressed its intention under Section 15 as to on what date the rate of duty and tariff valuation is to be determined. We cannot introduce the concept of deeming provision while determining the question of actual removal of the goods from the warehouse. The rate has to be determined on the basis of the date on which the goods are actually removed from the warehouse and thereafter the question would be examined as to how the relief is to be moulded in case it is found that the customs authorities were themselves responsible in preventing the importer of goods from actually removing the goods from the warehouse. In a case of the present kind where there is no ambiguity in the expressed intention of the legislature in determining the date for applying the rate of duty, no juristic principle of deemed remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e event under Section 12 occurred; and as the duty was nil on that day, therefore the question of paying any duty with reference to a subsequent point of time, namely, when the goods were removed from the warehouse did not arise." 16. In 1993 (66) E.L.T. 551 (S.C.) - 1993 Supp (3) SCC 453 [Dhiraj Lal H. Vohra v. Union of India], it was held as follows : "The operation of Sections 46 and 31(1) of the Act. Section 46(1) provides that the importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form and it may be presented under sub-section (3) thereof at any time after delivery of the import manifest. Section 31(1) provides that the master of the vessel shall not permit the unloading of any imported goods until an order has been given by the proper officer "granting entry inwards" to such vessel and no order under sub-section (1) shall be given until an import manifest has been delivered or the proper officer is satisfied that there was sufficient cause for not delivering it. Granting entry inwards on delivery of import manifest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court clearly held that the date of clearance of the goods from the warehouse is alone the relevant date. This also answers the objection of the learned counsel for the respondent that the section is relevant only for fixing the rate of duty and not in a case like this where the question is whether the duty should be levied at all. 20. The importer's right to bring in the goods duty-free depends on the Advance licence, and when the Licence is not valid on the date when the duty is to be assessed, the right of exemption ceases. 21. In Pratibha Processors' case (supra), the Supreme Court held that there was no liability to pay interest because "on the date of clearance of the goods, no duty is paid". In that case also, the importer brought in the goods under an open general licence. His right to claim exemption from duty arose only because they had obtained advance licence under the DEEC scheme at a later point of time, i.e., subsequent to the import. The Supreme Court held that interest is necessarily linked to the duty payable and when the goods were wholly exempt from payment of duty on the date of removal from the warehouse, there can be no liability to pay interest on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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