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TMI Blog1991 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as continuous filament yarn. Both the petitioners import man-made yarn as well as continuous filament yarn. The petitioners have private bonded warehouse licenses under the relevant provisions of the Customs Act, 1962. Besides import duty, the petitioners are required to pay additional duty of customs under the provisions of the Customs Tariff Act, 1975. This duty is also popularly called countervailing duty. As provided under Section 3 of the Customs Tariff Act, 1975, the measure of additional duty of customs is equal to the excise duty for the time being leviable on like article if such article is produced or manufactured in India. It is an undisputed position that the petitioners were liable to pay additional duty of customs on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment of the additional duty demanded from them. However, later on they paid the amount under protest. 5. According to the petitioners, the goods were already imported in India prior to the imposition of additional duty of excise by the aforesaid Ordinance. After import of goods, same were stored in private bonded warehouse. Therefore, it is contended that the additional customs duty equal to additional duty of excise imposed under the Ordinance could not have been levied from them. The petitioner of Spl. C.A. No. 848/81 has claimed refund of amount of Rs. 88,899.57 ps. while petitioner of Spl. C.A. No. 849/81 has claimed refund of Rs. 1,43,570/-. Both the petitioners have also prayed that either the amount mentioned in the prayer cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court has observed as follows :- "It is thus the clear requirement of clause (b) of sub-section (1) of Section 15 of the Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross reference to Section 49 of the Act shows, that an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he may be permitted to do so. The other relevant provision is that contained in Section 68 of the Act which provides that the importer of any warehoused goods may clear them for 'home consump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Tariff Act, 1975 partakes the same character as that of the customs duty since it is in addition to the duty which is leviable under Section 12 of the Customs Act, 1962. Section 3(1) of the Tariff Act, 1975 provides a measure of the additional duty which has to be equal to the excise duty leviable on a like article if produced or manufactured in India. 9. If decisions of the Supreme Court in the case of Prakash Cotton Mills and in the case of Khandelwal (supra) are read together, it becomes obvious that in cases where goods are stored in private bonded warehouse, the rate of customs duty leviable would be the rate prevailing on the date of actual removal of the goods for home consumption from the private bonded warehouse. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the additional duty of customs is not imposed by the Ordinance. On account of the provisions of Section 3(1) of the Customs Tariff Act, 1975, read with the provisions of the Ordinance there is change in the rate of additional duty of customs or it may be that the additional duty of customs is sought to be levied or collected for the first time on account of the Ordinance, coming into force. But then the relevant date for levy of customs duty is the date on which the goods are actually removed from the private bonded warehouse for home consumption. When the goods are actually removed from the private bonded warehouse, it is not the additional duty of excise, or countervailing duty as is popularly called, is sought to be levied on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot say that the goods manufactured by him shall not be subjected to excise duty after they are manufactured. If such imposition retains the essential characteristics of excise duty, there is nothing in law to say that the imposition of excise duty on goods already manufactured any right of the manufacturer is adversely affected or impaired. Moreover, if the tax is levied and collected at the stage of removal of the goods, no new obligation or disability is attached in respect of any earlier transaction or consideration. For the same reasons this argument also fails. 12. No other contention is raised. 13. There is no substance in the petitions and hence both the petitions are rejected. Rule discharged. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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