TaxTMI 
TaxTMI 
2024 (6) TMI 671
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....cific complaint against the appellant alleging illegal sales of foreign made foreign liquor imported duty-free, a search operation was conducted at the special bonded warehouse and sales outlet at the duty-free shop where certain discrepancies were noticed from the stock of foreign made foreign liquor in the Special Warehouse; hence an offence case was registered by the Commissionerate of Customs (Preventive), Cochin. Further enquiries brought out the following discrepancies. (i) Operating duty-free shop without possessing a Special Warehouse licenced premises. (ii) Sale of duty-free goods directly from the duty-free shop without warehousing the same in the Special Warehouse. (iii) Transferring a special warehouse licenced premises without the knowledge of the Department. 2.1 Based on detailed investigations and from the statements of various persons, notice dated 13.08.2018 was issued for violation of various conditions of the Special Warehouse licence and on adjudication the Commissioner in the impugned order cancelled the Special Warehouse Licence No. 01/2017-18 dated 31.08.2017 issued to the appellant in terms of Section 58B (1) of the Customs Act,....
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....ing from any unsecured premises does not arise. 3.2 He further submits that once a Duty-Free Shop (DFS) is allotted by the Airport Authority of India (AAI) based on a global tender, appellants are entitled to a special warehouse and the customs department supervises the entire operation of movement of goods into the warehouse, keeping warehouse under its lock and movement of goods from warehouse to DFS. Based on the Hon'ble High Court's directions, appellant represented to the Chief Commissioner/Commissioner of Customs for permitting them to continue their operations in terms of the licence granted to the premises measuring 35.89 sq.mtrs. and to validate the licence dated 31.08.2017 by incorporating 154 Sq.mtrs. space. This application was rejected by way of communication by the Assistant Commissioner vide his letter dated 28.06.2019. Later, a show-cause notice dated 13.08.2018 was issued and the Commissioner vide impugned order No.93/2022 dated 05.04.2022 cancelled the Special Warehouse Licence No. 1/2017-18 dated 31.08.2017. Hence this appeal. 3.3 The learned counsel also relied upon the following decisions: • Union of India vs. Paras Laminates (P) Ltd.: 1990 (....
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....ons of the conditions of the Special Warehouse Licence, the Commissioner vide order dated 19.04.2018 under Section 58B(2) of Customs Act, 1962 suspended the Special Warehouse Licence No.1/2017-18 dated 31.08.2017 issued to the appellant pending enquiry. A writ was filed against this order by the appellant and the same was disposed by the Hon'ble High Court of Ernakulam vide order dated 21.12.2018 observing as follows: "103. But the question is, could the Department have done without suspending the licence? Possessing power does not justify using it always. Possessing is a matter of statute, but its use is a matter of discretion. And that discretion must be animated by reason and justification. The investigation, it seems, began in December 2017, and licence suspension took place in April 2018. Besides a bald assertion, that the Company officials have been uncooperative, I fail to see any other major compelling reason for the authorities to suspend the licence. And that allegation of non-cooperation remains unconvincing, for the record presents a different picture. 104. Besides that, the Airport Authority of India laments the loss of revenue; it asserts that the li....
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....pplied at the 'duty free shops' in any customs area is included within the purview of Section 58A. Therefore, it is clear that the business operations in the duty free shops conducted by the 1st respondent can be permitted only if they possess a licenced special warehouse, coming within the purview of Section 58A. Ext.P5 (special warehouse licence No.01/2017-189 dated 31.08.2017) is the licence issued by the Competent authority to the 1st respondent under Section 58A for establishment of a special warehouse within the premises of the new international Airport at Thiruvananthapuram, for the purpose of storage of goods to be supplied at the duty free shops conducted by them in the terminals. The licence contains the terms and conditions specified there in and it is mentioned that it will remain valid until cancelled in terms of Section 58B read with the relevant regulations. In Ext.P5, the details of the special warehouse are shown as follows: "Location Space; measuring 35.89 sq. mtr (non A/C area) adjacent to Restaurant cum staff canteen (under the flyover) at International Terminal Building, Trivandrum Airport." Ext.P5 licence was issued on 31.08.2017. 7.....
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.... the business can be permitted to continue. The relevant provisions specifically prohibit any person from entering such warehouse or from removing the goods there from without permission of the proper officer. It is 'Sine qua non' that supply to the duty-free shops can be made only from a licenced special warehouse. So, the question is as to whether the 1st respondent is in possession of a licenced special warehouse under Ext.P5. From the relevant provisions it is cleared that the special warehouse is licenced only on a specified premise. So, the subject matter of such licence is the permission to establish a special warehouse at a particular premise. It cannot be accepted the contention that, any change in the premises will not invalidate the licence. Unless specific licence is issued with respect to the new premise or necessary changes are effected in the existing licence with respect to the shifting of the premise, we cannot hold that the licence continues to be valid and that the 1st respondent is entitled to continue business on the basis of Ext.P5 licence. 9. Since the 1st respondent is not legally entitled to carry on the business in the duty-free shop, without a pr....
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....ication No.69/2016 Customs (NT) dated 14.05.2016. The same was adjudicated by the Commissioner vide Order No. 93/2022 dated 05.04.2022 who cancelled the Special Warehouse Licence No.01/2017-189 dated 31.08.2017 issued to the appellant. Thereafter, the appellant filed a writ appeal with the High Court of Kerala and the Hon'ble High Court of Kerala vide Order dated 23.06.2022 observed that: "6. by preserving all the rights available to the 1st respondent against the order dated 05.04.2022 and granting liberty to the 1st respondent to work out the remedies in accordance with law within a week from today and in the interregnum the order dated 05.04.2022 is kept in abeyance the writ appeal stands in dispose of". "11. All the questions and consequences that may arise or answered, pursuant to any of the steps taken in this behalf, are matters for adjudication before the Tribunal or the Court. They are to be independently considered on their own merit, uninfluenced by the impugned judgment. This court has not examined or expressed a view on any of the issues or merit in this behalf". Hence, the appeal before us against the Commissioner's order No. 93/2022 dated 05.04.2....
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....arrival hall of the terminal under cover of 'Arrival/Departure release application form' which is duly signed by the customs officer and the process of transfer from outside the warehouse to inside the warehouse is supervised by the proper officers of customs, necessary entries are made in the registers, it shows the closing balance of the items in the warehouse behind the Airport Canteen". Therefore, as rightly observed by the Hon'ble High court of Kerala in its order dated 18.03.2019 supra "It is evident from Ext.P13 (representation dated 28.12.2017) series documents that, the officers of the customs department at various level had issued certificates required for transport and deposit of beverages to be supplied to the duty-free shops, as if there existed a licenced bonded warehouse (Special warehouse)". 5.5 Thus, as observed by the Commissioner in the impugned order since the new premises was allotted within 15 days of the original allocation the appellant started operating only from the new premises but without getting the Licence amended. But the fact remains that the goods were stored and removed from the new premises under the Customs supervision. Therefore, the....
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....ecified in Ext.P5 for the purpose of housing the special warehouse and once they get back possession of the said premises, they may be permitted to continue the business activities as directed on the strength of Ext.P5. We make it clear that it is for the authority consider such request if any made and to take appropriate decision in that respect." 5.11 Thereafter, the appellant vide letter dated 19.03.2019 requested for reallotment of 35.89 Sq. mtr. and the Airport Authority of India vide letter dated 22.03.2019 (reproduced below) allotted the space for the purpose of the special warehouse. As has been already discussed, the re-warehousing certificate before us clearly shows that the entry of goods into the Special Warehouse and exit were all done with the knowledge of the Customs Officers and therefore, there is no irregularity in storing of the goods at the special warehouse at the new premises. From the facts of the case as already discussed above, the alleged irregularities were actually noticed at the Duty-Free Shop at the Trivandrum Airport which resulted in cancellation of the Special Warehouse Licence. It is a fact that the Duty-Free Shop cannot function without the ....
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....f canteen (under the flyover) at International Terminal Building at Trivandrum Airport 3 (Three) years w.e.f the date of taking over of the space. Special Customs Bonded Warehouse. Space rental @Rs.1,140/- per Sq Mir. per month for the non- AC area plus tax as applicable (Le.Rs.40,915/- p.m.+ applicable taxes & Govt. levies) is payable by the licensee. The space rent shall have escalation w.ef 1 of April every year @10%or as decided by 'AAI. Advance licence fee for an amount of Rs.48,280- Tincluding, 18% GST) is to be paid in advance before taking over the space.. The rates are subject to revision from time to time at the discretion of the authority. The Licence fee for space shall always be paid in advance on or before 10 of every month . Rs.2,45,490/- (Rupees Two lakhs forty five thousand four hundred ninety only) Le. equivalent to six months licence fee in the form of Demand DraftPay Order drawn on any nationalized bank in absolute favour of Airport Director, AAI, Trivandrum Airport within 15 days of receipt of this letter. Rs.81,830/- (Rupees Eighty one thousand eight hundred and thirty only) Le equivalent to two....
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....om the Airport Director, AAI Trivandrum, is obtained in writing. B), No structural additions and alterations whatsoever to the said premises are permissible without prior written approval of the Airport Director, AAI, Trivandrum Airport M) The licensee shall not, unless with the written consent, as aforesaid, assign or transfer this present licence or any part thereof. v) AAI will allot only bare,space, The licensee shall bear the cost of covering the area, Interior works of the space allotted, the drawing of which may be got approved from AAI before execution: However, the exterior shall match with the aesthetics of the building to maintain uniformity. In case of excess area in occupation as per actual measurement at site at any time after Handing/Taking over of the space, the licensee Is. liable to pay the space rent & security deposit for the additional area octupled by them. vi) No- branding/hoarding/stickerlogo etc. to be affixed, without the prior," approval of Airport Director. vi) In case the space allotted is required. by AAI, the licensee has to vacate/shift his office to the newly identified/allocated location at his own....
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....E पी.बी.नं. 13, आई.सी.ई à¤à¤µà¤¨, पà¥à¤°à¥‡à¤¸ कà¥à¤²à¤¬ रोड P.B.No.13, I.C.E.BHAVAN, PRESS CLUB ROAD faraia, THIRUVANANTHAPURAM, 695001 www.cenexcisetvm.gov.in E-mail: [email protected] tata/Telephones 0471-2337040/41/42/45/46, /Fax: 0471-2325252 2337552/2337553 SPECIAL WAREHOUSE LICENCE NO:01/2017-18 (Issued under Section 58-A of the Cusoms Act, 1962) License No: 01/2017-18 is hereby granted to M/s Plus Max Duty Free Pvt Ltd. New International Terminal Building, International Trivandrum-695024 (having its registered office at No.86/18, Royal complex, Shankari Road, Seetharampalayam, Trichengode-637 209, Namakkal, Tamil Nadu, India) under Sec 58-A of the Customs Act 1962 in respect of Special Warehouse situated at New International Airport at Thiruvanathapuram for storage of goods for the purpose of supply to Duty Free shops in a Customs Area. The grant of License is subject to the terms and conditions specified herein and at the reverse. It is not transferable to any person or persons and shall remain va....
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....e space. The rates are subject to revision from time to time at the discretion of the authority. The Licence fee for space shall always be paid in advance on or before 20 every month 1) Rs. 20,53,128/- (Rupees twenty lakhs fifty three thousand one hundred and twenty eight only) equivalent to six months licence fee of the seventh year In the form of Demand Draf/Pay Order drain on any -nationalized bank in absolute favour of Airport Director, AAI, Trivandrum within 15 days of receipt of this letter. 1) Rs. 3,51,120/- (Rupees Three lakhs fifty one thousand one hundred. and twenty only) le equivalent to two months licence fee is to be furnished in the form of Demand Orat/pay order drawn in favour of Airport Director, AAI, Trivandrum as Security Deposit towards electricity charges within 15 days of receipt of this letter तà¥à¤°à¤¿à¤µà¥‡à¤¨à¥à¤¦à¥à¤°à¤® अंतररà¥à¤°à¤¾à¤·à¥à¤Ÿà¥à¤°à¥€à¤¯ हवाई अडà¥à¤¡à¤¾ Trivandrum Intemational Airport 29/06/18 (Sönkumar km) विरà¥à....
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....नपतà¥à¤¤à¤¨ पà¥à¤°à¤¾à¤§à¤¿à¤•à¤°à¤£ AIRPORTS AUTHORITY OF INDIA . 22.03.2019 Sub: Temporary Allotment of space admeasuring 35.89Sqm (Non-A/C Area adjacent to Restaurant-cum-Staff Canteen) of International Terminal Building (Operating Ware House)-reg Please refer to your letter no.PM/DFS/TVD/2018-19/04 dated 19.03.2019 regarding allotment of premises for operating special warehouse linked to M/s Plus Max Duty Free shop in Trivandrum International Airport. In this regard, the approval of Competent Authority is hereby conveyed for allotment of 35.89 Sqm (Non-A/C Area - adjacent to Restaurant-cum-Staff Canteen) in the International Terminal Building of Trivandrum Airport to M/s Plus Max Duty Free Pvt Ltd on the following terms & conditions: 0 Licence Period Licence Fee iv) Security Deposit Space admeasuring 35.89 Sqm (Non-A/C Area adjacent to Restaurant-cum-Staff Canteen) in the International Terminal Building (Operating Ware House) Three (3) months with effect from the date of taking over. Space rental @Rs.1,255/- per Sqm per month for Non AC Area plus....