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TMI Blog2001 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ond hand machines as per list enclosed to the said EPCG license produced. This permitted the clearance of the following sets of second hand Piconal Brand Rapier Weaving Machines - 1. Type : GTM-4-R-AS-190 cm Year of the make : 1992, Sl. No. 195875 UP, Qty : 10 machines. 2. Type : GTM-4-R-A-190 cm Year of the make : 1989, Sl. No. 191363 UP, Qty : 16 machines. 3.However, on examination of Cargo, it was found that there were 14 machines of Type : GTM-4-RAS 190 cm as against 10 machines and in respect of Type GTM-4-RA-190 cm there were 10 machines. However, the width of this machines were 220 cm as against 190 cm permissible. The Commissioner of Customs, Trichy vide his order dated 14-7-1999 found that four machines of the Type GTM-4-RAS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antity etc. The impugned order had not considered the effect of this amended licence because at that time that licence was not available in the amended form. Therefore, we are of the considered view that interest of justice would require that the entire matter may be remanded to the original authority for re-consideration for the violation of principles of natural justice. Therefore, the impugned order is set aside and matter remanded back to the learned Commissioner of customs for de novo consideration, after giving an effective opportunity of personal hearing to the appellants and also after considering the amended EPCG licence as per law. Ordered accordingly." 5.The Commissioner vide his Order No. 59/2000 dated 11-2-2000, now impugned b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were warehoused under Chapter IX of the Customs Act, 1962. In the present case the goods were cleared from the customs after the amendment of the licence in question. They were assessed on 16-7-1999 and cleared on 17-7-1999 and taken charge on payment of duty. They were only sent under Section 49 pending payment of duty as per importer's requests. So far as the customs are concerned, the goods were cleared on 17-7-1999 when these were permitted to be detained for de-stuffing under Section 49 and when the license was not amended. Therefore, the amendment covering only such goods which had arrived, yet not cleared, would not be applicable in this case, as the assessment were finalized on 17-9-1999 and subsequent detention under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have paid the duty, fine and penalty on that date. Section 47(1) of the Customs Act provides as follows - "47. Clearance of goods for home consumption. - (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption". Therefore, the goods were permitted clearance for home consumption, only after the importer has paid the import duty. If import duty is not paid as assessed, the goods cannot be said to have had an order, 'permitting cleared for home consumption', also kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehouse. When a case is made out of a permission granted under Section 49, undoubtedly the rate of duty would be, as arrived at by the ld. Commissioner i.e. the date of noting of the B.E. However, the proper officer having found the goods for home consumption, are fit for deposit/storage under Section 49, then duty on the same could not have been recovered. Therefore, we fail to appreciate, the reasoning of the ld. Commissioner. We find that in the case of Sri Kannapiran Mills Ltd. - 2000 (125) E.L.T. 1110 (Tribunal) in similar situation, the South Zonal Bench, Chennai held as follows - "as per para 6.6 of the EXIM Policy, under which these goods have been imported goods having already arrived, provided Customs duty has not been paid and g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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