TaxTMI 
TaxTMI 
2024 (4) TMI 49
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.... the provisions of Section 72(1) read with 61 of the Customs Act. However, in the year 2018 in relation to the alleged recoveries an alert being Alert No. 20663 dated 23 March, 2018 was inserted which was to the following effect:- "existing warehousing bond is pending for closure even after expiry for want of payment of duty or furnishing of Bank Guarantee for compliance". 3. The case of the petitioners is that the demand notice dated 8 August 2013 was rendered unenforceable, as also the bond which was furnished by the petitioner to the respondents, for warehousing purposes, itself had expired and accordingly was unenforceable, as per the provisions of Section 59 of the Customs Act. It is contended that for such reason the demand notice dated 8 August 2013 and the impugned Alert could not have been foisted on the petitioner, so as to give effect to the old demand, which even otherwise had become redundant. 4. It is on the above premise, the present petition is filed praying for the following reliefs: "a) That this Hon'ble Court may issue a Writ of Certiorari or an appropriate direction or order calling for the records of the Petitioners' case to go into the legality and prop....
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....oner by its letter dated 12 November 2019 informed the respondents that in respect of the goods which had remained to be cleared being subject matter of the three bills of entries, the petitioner had relinquished its title over such goods. It is the petitioner's case that after such letter was received by the respondent, subsequent imports from the petitioner were allowed to be cleared. However, in December 2022 when the petitioner again imported same goods although such goods for some period were put on hold, on the petitioner pointing out the relevant facts in relation to the pending demand, the petitioner's request for clearance of the goods was accepted thereby the goods subject matter of five fresh Bills of entries were permitted to be cleared on 18 May 2023. 8. It is on the above backdrop to resolve the issues on the alert so inserted, the petitioner made a representation to the respondents requesting that a NOC be granted for clearance of the live consignments which were sought to be imported. Such representation came to be granted and an NOC was received on 25 July 2023 as also the clearance of the goods was granted till 24 October 2023. 9. It is the petitioners case that....
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..... (emphasis supplied) 11. Thereafter, on 29 January 2024, the respondents by an e-mail addressed to the petitioner, served a further demand notice under Section 72(2) which was dated 11 December 2023, this, although the earlier demand notice dated 8 August 2013 itself was not pursued and / or according to the petitioner, such notice had lapsed. It is in these circumstances, the petitioner had approached this Court praying for the reliefs as noted by us hereinabove. 12. We had heard the proceedings on 8 February 2024, when the petitioner contended that a fresh live consignment was sought to be imported by the petitioner, and it is in such context, it was the petitioner's case that the impugned order would be pressed against the petitioner and a no-objection would not being issued. However, respondent Nos. 2 and 3 on instructions made a statement before the Court that the department would issue a No-objection certificate to the petitioner for clearance of the live consignment. Such consignment was accordingly cleared. Our order dated 8 February 2024 reads thus: "1. Learned counsel for respondent Nos. 2 and 3, on instructions, makes a statement that the department would issue a ....
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.... to execute a general bond in such amount as the Assistant Commissioner of Customs or Deputy Commissioner of Customs may approve in respect of the warehousing of goods to be imported by him within a specified period. (3) The importer shall, in addition to the execution of a bond under sub-section (1) or sub-section (2), furnish such security as may be prescribed. (4) Any bond executed under this section by an importer in respect of any goods shall continue to be in force notwithstanding the transfer of the goods to another warehouse. (5) Where the whole of the goods or any part thereof are transferred to another person, the transferee shall execute a bond in the manner specified in sub-section (1) or sub-section (2) and furnish security as specified under sub-section (3).] Section 60. Permission for removal of goods for deposit in warehouse (1) When the provisions of section 59 have been complied with in respect of any goods, the proper officer may make an order permitting removal of the goods from a customs station for the purpose of deposit in a warehouse: [PROVIDED that such order may also be made electronically through the customs automated system on the basis....
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.... exceptional nature, to be specified in such order, waive the whole or any part of the interest payable under this section in respect of any warehoused goods; (b) by notification in the Official Gazette, specify the class of goods in respect of which no interest shall be charged under this section; (c) by notification in the Official Gazette, specify the class of goods in respect of which the interest shall be chargeable from the date on which the proper officer has made an order under subsection (1) of section 60. Explanation.--For the purposes of this section,-- (i) "electronic hardware technology park unit" means a unit established under the Electronic Hardware Technology Park Scheme notified by the Government of India; (ii) "hundred per cent. export oriented undertaking" has the same meaning as in clause (ii) of Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944; and (iii) "software technology park unit" means a unit established under the Software Technology Park Scheme notified by the Government of India.] Section 72. Goods improperly removed from warehouse, etc. (1) In any of the following cases, that is to say,- (a) where....
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....es payable in respect of such goods. 18. Insofar as the present proceedings are concerned, clause (b) of subsection (1) of Section 72 is being applied by the Revenue, which pertains to the warehoused goods which have not been removed from the warehouse, at the expiration of the period during which such goods are permitted under section 61 to remain in a warehouse. In fact, the demand notice dated 8 August 2013 was issued under sub-section (1) of Section 72 and the demand notice dated 11 December 2023 as impugned is also issued under Section 72 (2) of the Customs Act. The other provision as sought to be relied on behalf of the respondents is Section 142 of the Customs Act, which provides for "Recovery of sums due to Government". It is a general provision falling under Chapter XVII (Chapter providing for 'Miscellaneous' provisions). 19. Having noted the statutory scheme in regard to the recovery of the amounts in respect of goods warehoused and as relevant in the present context, we may observe that it is not in dispute that there were four bills of entries of the year 2005 and 2010 in respect of which goods were partially cleared and some / balance goods part of the said bills of ....
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....e your alert against IES 0592050921 would not be removed. As you have already taken two times NOC dt. 18-05-2023 & 25.07.2023 for clearing live consignment. The competent authority has not granted further NOC for clearing live consignment and has directed you to comply the warehouse regulations & pay as per notices issued to you. The receipt of this notice may be acknowledged." 21. From a bare perusal of the aforesaid notice, it is clearly seen that after issuance of the demand notice dated 8 August 2013, which were four demand notices, in respect of four bills of entries, only in respect of one bill of entry, the impugned notice under Section 72(2) has been issued without any action being taken to recover any duty as subject matter of the earlier demand notices. There is no explanation whatsoever coming forth, in regard to the inaction on the part of the Customs officers in enforcing the earlier notice during the period 2013 to 2023, for any recovery that is under the demand notice dated 8 August 2013. We may thus observe that a fresh notice under Section 72(2) could not have been issued, when the earlier notice dated 8 August 2013 itself was not acted upon and/or was given u....
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.... respondents to impose a recovery which would be alien to the provisions of the Customs Act, when the respondents had resorted to take recourse to the provisions of Section 72. In our opinion, the bond had clearly become unenforceable not only by considering the terms of the bond but also for the future period, as the law would make the unenforceable, as no recovery could be resorted under such bond after a period of three years from its execution, considering the provisions of Section 29 of the Limitation Act, 1963, which reads thus: Description of suit Period of limitation Time from which period begins to run On a single bond, where no such day is specified. Three years. The date of executing the bond. 25. Thus, any action to recover the amounts under a bond even otherwise would be within the period of three years from the date of execution of the bond. The bond in question was a single bond executed on a specified date wherein according to the Customs date was not specified in regard to making any payment under the said bond to the respondent. On such count also, although the provision of Section 59 was available to be appropriately considered and complied at the appro....