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TMI Blog2024 (6) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the permission of the Customs officers. As observed by the Commissioner in the impugned order since the new premises was allotted within 15 days of the original allocation the appellant started operating only from the new premises but without getting the Licence amended. But the fact remains that the goods were stored and removed from the new premises under the Customs supervision. Therefore, the appellant cannot be alleged with any illegality in as much as there is no evidence to prove that goods were not stored or removed without the customs supervision. The re-warehousing certificate before us clearly shows that the entry of goods into the Special Warehouse and exit were all done with the knowledge of the Customs Officers and therefore, there is no irregularity in storing of the goods at the special warehouse at the new premises. From the facts of the case, the alleged irregularities were actually noticed at the Duty-Free Shop at the Trivandrum Airport which resulted in cancellation of the Special Warehouse Licence. It is a fact that the Duty-Free Shop cannot function without the goods being stored at the special warehouse allotted to the appellant and it is essential to ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2018 was issued for violation of various conditions of the Special Warehouse licence and on adjudication the Commissioner in the impugned order cancelled the Special Warehouse Licence No. 01/2017-18 dated 31.08.2017 issued to the appellant in terms of Section 58B (1) of the Customs Act, 1962. 3. The learned counsel submits that the Airport Authority of India had awarded a contract to the appellant for running the duty-free shop at the International Airport Trivandrum. To run the duty-free shop at an International Airport, a Special Warehouse Licence is necessary to store the goods and accordingly, the appellant applied for a Special Warehouse Licence under Section 58A of the Customs Act, 1952 which provides a Licence along with a place (warehouse) where dutiable goods are to be deposited and all the goods in the warehouse are to be brought into and removed only with the permission of the Customs officers. 3.1 It was further submitted that the appellants were originally allotted with the space of 35.89 Sq. mtr. by the Airport Authority of India to enable commencement of their operations and the Commissioner of Customs had issued Special Warehouse Licence No.1/2017-18 dated 31.08.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner vide impugned order No.93/2022 dated 05.04.2022 cancelled the Special Warehouse Licence No. 1/2017-18 dated 31.08.2017. Hence this appeal. 3.3 The learned counsel also relied upon the following decisions: Union of India vs. Paras Laminates (P) Ltd.: 1990 (8) TMI 140 SC Commissioner of Income Tax, Madras vs. Mahalakshmi Textiles Mills Ltd.: MANU/SC/0142/1967 Commissioner of Income Tax, Bombay vs. Walchand and Co. Pvt. Ltd.: MANU/SC/0127/1967 Associated Cement Companies Ltd. vs. P. N. Sharma and Ors.: MANU/SC/0215/1964 Additional Director General (Adjudication) vs. Its My Name Pvt. Ltd.: MANU/DE/1823/2020 4. The learned Authorised Representative for the Revenue reiterating the findings of the Commissioner and relying upon the various statements, submits that the Commissioner was justified in cancelling the licence as the conditions laid down therein were violated and the premises occupied by them was without any approved licence. 5. Heard both sides. The admitted facts are that the Airport Authority of India had awarded a contract to the appellant for running the Duty-Free Shop at the International Airport Trivandrum and to run the Duty-Free Shop at an International Airport, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns unconvincing, for the record presents a different picture. 104. Besides that, the Airport Authority of India laments the loss of revenue; it asserts that the licence suspension, interim though, is entirely avoidable; it could have been done without. It cites numerous complaints from the international passengers about the airport s inability to provide a basic amenity for them. True, Airport Authority s contract with the Company does not consider the interim suspension; it may not, in that sense, affect the revenue to be collected from the Company. But here revenue is not the only question. It is much more. It is about the facility to be enjoyed by the commuters. 105. I reckon the Customs Department has an efficacious mechanism to impose sufficient checks on the Company to ensure that pending the inquiry, it accounts for every sale transaction. In fact, the Department has not alleged, as I could see, that the Company has been guilty of any malpractice pending investigation. So it is a question of balancing the equities. That apart, the Customs Department has informed the Court during the arguments that almost the entire investigation has been completed. Pitted against an apprehen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t International Terminal Building, Trivandrum Airport. Ext.P5 licence was issued on 31.08.2017. 7. It is conceded by both sides that the premises of the special warehouse licenced under Ext.P5 is not occupied by the 1st respondent at present, because the said space was surrendered to the Airport Authority of India on 15.09.2017. Referring to Ext.R1 (P) (notice dated 13.08.2018) document the 1st respondent pointed out that , surrender of the premises licenced under Ext.P5 was on the basis that the Airport Authority of India had allotted another space having an area of 154 sq. mtrs., below the bridge for the purpose of establishing the special warehouse, with effect from 13.09.2017; and since than the said area was being used as the special warehouse. But the fact remains that the 1st respondent has not obtained any licence for the special warehouse in the said area of 154 sq.mtrs. It is evident from Ext.P13 (representation dated 28.12.2017) series documents that, the officers of the customs department at various level had issued certificates required for transport and deposit of beverages to be supplied to the duty free shops, as if there existed a licenced bonded warehouse (Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally entitled to carry on the business in the duty-free shop, without a properly licenced special warehouse, allowing such business to be carried on based on the direction contained in the impugned judgment, will definitely result in breach of the statutory provisions and in turn will be permitting an illegality to be perpetrated. 10. Under the above-mentioned circumstances, we are inclined to grant an interim stay with respect to the direction contained in the impugned judgment permitting the 1st respondent company to carry on its business operations, pending disposal of the above writ appeal. 11. xxxxx 12. It is pointed out by learned counsel appearing for the 1st respondent that, they have already approached the Chief Commissioner of Customs with the request for incorporating the premise admeasuring 154 sq. mtrs., situated below the bridge at the exit side of the international airport, into the licence of the special warehouse (Ext.P5). We are of the considered opinion that, it is for the said authority to consider such request and to take an appropriate decision on such request or on request if any made to issue licence for a special warehouse in the new premise. We make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 dated 05.04.2022. In the impugned order the Commissioner alleged the following violations: i. Operating duty-free shop without possessing a Special Warehouse licenced premises and transferring a special warehouse licenced premises without the knowledge of the Department. ii. Sale of duty-free goods directly from the duty-free shop without warehousing the same in the Special Warehouse. iii. Non appointment of a warehouse keeper and noncompliance of Regulation 6(2) and 10 of Special Warehouse (Custody and Handling of goods) 2016. 5.4 It is a fact that a Provisional premises was allotted to the appellant for storing the duty paid goods for running the Duty-Free Shop at the International Terminal at Trivandrum Airport as is seen from the letter dated 28.08.2017 (Para 5). It is also on record that a new premises 154 sq.mtrs was allotted on 13.09.2017 within 15 days from the date of provisional allocation. The Special Warehouse Licence was issued on 31.08.2017, based on the original allocation of space of 35.89 sq.mtrs. The appellant started functioning from the new premises from 15.09.2017 onwards. Its an admitted fact that the licence was not amended to give effect to the new premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much as there is no evidence to prove that goods were not stored or removed without the customs supervision. 5.6 With regard to the fact that the receipt and movement of goods from the new premises was done under the supervision and knowledge of the Customs officers, the Commissioner in the impugned order observes that necessary action will be taken against the concerned officers. Thus, the fact that the new premises was being operated and the movement of goods in and out were done under the supervision of the Customs officers is not denied. 5.7 With regard to the allegation that warehouse keeper was not appointed, it is on record that Shri. P. Madhan was appointed as a location Manager for the entire operations from the Warehouse to the Duty-Free Shop. However, based on the statement that no warehouse keeper appointed, the Commissioner confirms the violation of one of the conditions of the licence. There is no dispute that Shri. P. Madhan was appointed as a location Manager who was responsible for the Warehouse. 5.8 Other allegations are with regard to the statutory returns and documents not being filed, all relate to the Duty-Free Shop, it is nothing to do with the goods deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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