TaxTMI 
TaxTMI 
2014 (10) TMI 299
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....the Bonded Warehouse in spite of the fact that the period of bonding has expired and the appellant has not asked for extension of the bonding period. It appears that the appellants were parallel trying to set up a 100% Export Oriented Unit and in that context they got permission but the goods lying the Bonded Warehouse were never shifted to the approved 100% EOU. The above mentioned Show Cause Notice was adjudicated by the Commissioner who dropped the Show Cause Notice on the consideration that the goods are meant for 100% EOU and the warehousing period for 100% EOU is yet to be over. It was also noted that though the amount for technical knowhow fee is required to be paid no such remittance was made so far. Against the said order, the Revenue filed appeal before this Tribunal. This Tribunal vide order No. 614/WZB/2004/C-III dated 30.7.2004 set aside the order and remanded the matter back to the Commissioner for de novo adjudication with the following direction: "2. Considering the grounds taken and finding that the entire import was not effected and ordered & promoted and hearing the DR, the appellants opting not to remain pr....
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....t on the warehoused goods under Section 61 of the Customs Act, 1962 after expiry of 90 days from the initial warehousing period till the date of payment. The plant and machinery was confiscated under Section 111 (m) as the declared value was enhanced keeping in view the proportionate technical knowhow fee in respect of plant and machinery imported. A penalty of Rs. 25 lakhs was also imposed on the appellant. 4. The learned advocate for the appellant, at the outset, stated that he is not pressing on the valuation issue. His main contention was that the appellant has relinquished the title as per letter dated 14.3.2006 and as per the proviso to Section 68 of the Customs Act, 1962 the owner of any warehoused goods may at any time before an order for clearance of goods for home consumption has been made in respect of such goods can relinquish the title to the goods. Since they have relinquished the title of the goods on 14.3.2006 and it is not under dispute that the goods have not been cleared for home consumption, the relinquishment of the goods is in order and as per the said proviso they are not liable to pay any duty. In support of his contention, the learned advocate extensively ....
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....ant can relinquish the title before clearance of goods for home consumption is irrelevant in the present situation. The learned A.R. quoted the judgment of the Hon'ble Supreme Court in the case of Kesoram Rayon vs Collector (supra). The learned A.R. stated that reading of the said judgment would make it clear that the Hon'ble Supreme Court has observed in para 13 that the goods which are not removed from a warehouse within the permitted period are to be treated as improperly removed from the warehouse. Such improper removal takes place when the goods remain in the warehouse beyond the permitted period. The learned A.R. submitted that even though the issue before the Hon'ble Supreme court was relating to the rate of duty applicable in case where goods remained in the warehouse beyond the permitted period, however, the logic and reasoning given there is equally applicable for deciding the issue in the present case. The learned A.R. further submitted that the Hon'ble Bombay High Court, which is the jurisdictional High Court in the case of Videocon International vs Union of India 2003 (155) ELT 25 (Bom) has taken the view that once the validity period of warehousing und....
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....s Act, 1962 is relating to goods improperly removed from the warehouse etc and the said Section lists out various situations wherein the proper officer may demand, and the owner of such goods shall forthwith pay the full amount of duty chargeable on account of such goods alongwith penalties, interest etc. It is not under dispute that the facts of present case are covered under clause (b) of Section 72 of the Customs Act, 1962. For proper understanding, the said Sections are reproduced below: "Section 61. Period for which goods may remain warehoused . - (1) Any warehoused goods may be left in the warehouse in which they are deposited or in any warehouse to which they may be removed, - (a) in the case of capital goods intended for use in any hundred per cent export oriented undertaking, till the expiry of five years; [(aa) in the case of goods other than capital goods intended for use in any hundred per cent. export-oriented undertaking, till the expiry of three years; and]* w.e.f. 14.05. (b) in the case of any other goods, till the expiry of one year, after the date on whi....
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....e full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods (2) If any owner fails to pay any amount demanded under sub-section (1), the proper officer may, without prejudice to any other remedy, cause to be detained and sold, after notice to the owner (any transfer of the goods notwithstanding) such sufficient portion of his goods, if any, in the warehouse, as the said officer may select." 7. We note from Section 72 (1) (b) that any warehoused goods not removed from a warehouse at the expiration of the period permitted under Section 71 are considered as goods improperly removed and the owner of such goods is required to pay, the full amount of duty chargeable together, with all penalties, rent, interest and other charges payable in respect of such goods. 1 st proviso to Section 68 introduced w.e.f. 14.5.2003, provides for relinquishment of title of warehoused goods at any time before clearance of goods for home consumption. Section 72 (1) (b) does not stipulate filing of Bill of Entry for payment of duty. Further, since the goods are considered as improperly removed fr....
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....d or its permitted extension. The importer of the goods may be called upon to pay Customs duty on them and, necessarily, it would be payable at the rate applicable on the date of their deemed removal from the warehouse, that is, the date on which the permitted period or its permitted extension came to an end. 14. Section 15(1)(b) applies to the case of goods cleared under Section 68 from a warehouse upon presentation of a bill of entry for home consumption; payment of duty, interest, penalty, rent and other charges; and an order for home clearance. The provisions of Section 68 and, consequently, of Section 15(1)(b) apply only when goods have been cleared from the warehouse within the permitted period or its permitted extension and not when, by reason of their remaining in the warehouse beyond the permitted period or its permitted extension, the goods have been deemed to have been improperly removed from the warehouse under Section 72. 10. It is observed that from the above judgment though the issue before the Hon'ble Supreme Court was date and rate of duty applicable, in the case of goods which are lying in the ware....
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....iew of the law as laid down by the Hon'ble Bombay High Court in the case of Videocon International Ltd (supra), we do not think it appropriate to go into this Circular. 14. We have gone through the judgment of the Hon'ble Bombay High Court in the case of Videocon International Ltd (supra) and the relevant para is extracted below: "2. The learned Counsel appearing for the petitioners relying on the definition of the word 'warehouse' and 'warehoused goods' defined under sub-sections (43) and (44) of Section 2 of the Act contended that the said definitions, if taken into account in the light of meaning assigned to them in the backdrop of the provisions of Section 69 of the Act, then the 'warehoused goods' would be continued to be 'warehoused goods' even after the expiry of the period prescribed under Section 61 of the Act and, therefore, can be permitted for export. As such learned Counsel for the petitioners submitted that the request made by the petitioner seeking to re-export the 'warehoused goods' under Section 69 of the Act in spite of the period for warehousing has expired needs to be ....
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.... the said goods were in the warehouse from the date of its import. It is also not in dispute that the said goods have not been cleared by the respondent after paying the requisite customs duty. However, the extension sought for continuing in the warehouse was granted by the authorities but even after the expiry of the said date, the goods were not removed from the warehouse. Section 23 of the Act states that only when the imported goods have been lost or destroyed at any time before clearance for home consumption, the application for remission of duty can be considered and that even before an order for clearance of goods for home consumption is made, relinquishing of title to the goods can be made, in such event also an importer would not be liable to pay duty. Therefore the expression "at any time before clearance for home consumption" would mean the time period as per the initial order during which the goods are ware housed or before the expiry of the extended date for clearance and not any period after the lapse of the afore said periods. The said expression cannot extend to a period after the lapse of the extended period merely because the licence holder has not cleared the goo....