TaxTMI 
TaxTMI 
2008 (2) TMI 646
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....75,836/-. The proper officer endorsed on the reverse of the Bills of Entry to the effect that the goods may be released by the Officer-in-charge of the warehouse. The Officer-in-charge, in turn, released the goods and made an endorsement to this effect on the reverse of the Bill of Entry. 4. Ex Bond bill of Entry for home consumption for quantity of 133.156 M.T. was filed on 28th May, 1998. The full amount of duty was paid thereon amounting to Rs.92,635/-. The proper officer endorsed on the reverse of the Bill of Entry to the effect that the goods may be released by the officer-in-charge of the warehouse. The officer-in-charge, in turn, released the goods and made an endorsement to this effect on the reverse of the Bill of Entry. 5. In view of the fact that SKO is a highly combustible material and cannot be taken out of storage tank to store elsewhere, the respondent made an application to the Assistant Commissioner of Customs, under Section 49 of the Act, requesting him to permit storage of goods, which had been cleared for home consumption, in the same warehouse/tank. 6. It may be mentioned here that the respondent had obtained a registratio....
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....antity of SKO lifted between 2nd of June, 1998 and 6th of June, 1998. 9. A show-cause notice was issued by the appellant to the respondent for charging the enhanced rate of duty. In the said show-cause notice, the claim of the appellant was, inter alia, for appropriation of the sum of Rs.12,78,116/- paid towards differential duty on the material removed between 2nd of June, 1998 and 6th of June, 1998, appropriation of the sum of Rs.24,48,822/- deposited towards differential duty on 1000 M.T. of SKO and for levy of enhanced rate of duty on the further remaining quantity of SKO. The respondent deposited a further sum of Rs. 62,63,000/- on 3rd of August, 1998 under protest Basic and Special Customs Duty towards balance quantity of the said material lying in the storage of IBP. Respondent filed his reply to the aforesaid show-cause notice dated 23rd of July, 1998. 10. The Commissioner of Customs, Calcutta vide his order dated 5th of November, 1998 confirmed the assessment as detailed in the show-cause notice and also imposed a penalty of Rs.5,000/- upon the respondent. The respondent being aggrieved, filed statutory appeal before the Tribunal. The Tribunal accepted ....
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....expression "imported goods" means any goods brought in India but does not include goods which had been cleared for home consumption. Since, in the present case, goods had been cleared by the Customs Officers for home consumption and out of charge order was passed, provisions of Section 15(1)(a) would be more appropriately applicable in the present case. 13. Section 15(1) at the relevant time read as under: - "15. Date for determination of rate of duty and tariff valuation of imported goods.- (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, - (a) in the case of goods entered for home consumption under section 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 or the arrival of the aircraft by which the goods are imported, the b....
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....rm "imported goods" is defined in Section 2(25) of the Act to mean any goods brought into India from a place outside India, but does not include goods, which have been cleared for home consumption. In view of the fact that the imported goods in the present case had been cleared for home consumption on 28th of May, 1998, they ceased to be imported goods within the meaning of the Act and the provisions of Section 15(1)(b)could not be applicable. 16. The Constitution Bench of this Court, in Bharat Surfactants (Private) Ltd. and Anr. vs. Union of India (UOI) and Anr. [(1989) 4 SCC 21], observed as under: - "...The provisions of Section 15 are clear in themselves. The date on which a Bill of Entry is presented under Section 46 is, in the case of goods entered for home consumption, the date relevant for determining the rate of duty and tariff valuation..."(Para 14). 17. Following the Judgment of the Constitution Bench referred to above, this Court in Shah Devchand & Co. and another vs. Union of India and another [AIR 1991 SC (1931)] held as under: - "In Bharat Surfactant's case it has been held that the rate of duty and tariff valuation has to be determined in accordance with Section....
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.... Union of India & Ors. [1993 Suppl.(3) SCC 453] and in Union of India & Ors. vs. Apar Private Ltd. & Ors. [(1999) 6 SCC 117]. 20. There is no dispute that where the imported goods are allowed to be warehoused under Section 68 of the Act and are subsequently cleared from the warehouse, the rate as applicable on the date of actual removal of the goods from the warehouse, is applicable. But where the goods are cleared for home consumption under Section 46, the duty payable would be as on the date the goods were cleared for home consumption. In the present case, not only the full duty stood paid by the respondent, but the Customs Officer had also permitted clearance of the same, as is evident from the endorsement made on the back of the bill of entries. As such, the goods cannot be held to be the warehoused goods and the same were allowed to be kept in the warehouse only on account of an application made by the appellants in terms of the provisions of Section 49 of the Act. The respondents have been clearing the goods from the storage tank as and when required. They were permitted to store the goods in a private warehouse as if it was their own godown. The goods were stored in the IBP....