TaxTMI 
TaxTMI 
2024 (6) TMI 1334
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....rtal. The Customs duty involved in the Ex-Bond BOEs was Rs. 47.82 Crores. 08.10.2021 :- The Appellant made an application before the Ld. Principal Commissioner of Customs (Port) for the withdrawal/cancellation of the Ex-Bond BOEs and reinstatement of Into-Bond BOEs in light of the ensuing festive season due to which the production and sales would remain depressed with manpower shortage and stretched finances. 20.10.2021 & 25.10.2021 :- Reminder letters with respect to the above were addressed to the Ld. Principal Commissioner of Customs (Port). 13.10.2021 :- Notification No. 48/2021 - Customs and Notification No. 49/2021 - Customs were issued, whereby the Basic Customs Duty ("BCD") and Agricultural Infrastructure and Development Cess ("AIDC") on the subject goods were reduced from 2.5% to "Nil" and 20% to 7.5% respectively with effect from 14 October 2021. 27.10.2021 :- The Ld. Assistant Commissioner of Customs, Appraising Group rejected the request of withdrawal/cancellation of the Ex-Bond BOEs on the ground that the reasons mentioned in the Application dated 08 October 2021 were inadequate. 01.11.2021 :- The Appellant furnished detailed justification....
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....from 7.5% to 5 %. 01.03.2022 :- The Ld. Division Bench of the Hon'ble Calcutta High Court was pleased to set aside the Order dated 21 January 2022, directing the authorities to release the subject goods and pass a speaking order in the said matter. 10.03.2022 :- Two letters of even date were filed for release of the Warehouse goods along with a Manual Bill of Entry for home consumption by assessing the customs duties to the tune of Rs.20,26,59,739/- and a Draft of Rs.1,02,20,754/- towards the payment of interest for the period from 18 January 2022 to 10 March 2022, basis which the warehouse goods were released. 19.04.2022 :- The Appellant vide its letter dated 19 April 2022 furnished a break-up of sum of Rs.23.91 Crores (duty-wise split) along with the amount of refund of Rs.3.64 Crores to which the Appellant would be entitled to if its application for cancellation/substitution of the Ex-Bond BOE was allowed. 08.09.2022 :- The Ld. Adjudicating Authority passed Order No. KOL/CUS/AC/GR. I/PORT/45/2022 once again rejecting the application of the Appellant for cancellation of the Ex-Bond BOEs and re-instatement of the Into- Bond BOE, interalia holding that the s....
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....lar way, there is an obligation and/or duty to exercise discretion in that way. He relied on the following decisions : (i) IFB Industries Limited Vs. Union of India 2017 (353) E.L.T. 322 (Del.) & (ii) Union of India Vs. Raj Grow Impex LLP - 2021 (377) E.L.T. 145 (SC). 3.5 He further submits that cancellation/withdrawal of a BOE is allowed in terms of serial no.4 of the Standing Order No.16/2020 dated 16 June 2020 which lays down the SOP for Deletion or Cancellation of Bill of Entry in the system. 3.6 He further submits that in any event, cancellation/withdrawal of BOE has not been specifically prohibited under the provisions of the Customs Act. It is a settled principle in law that every procedure is to be understood as permissible till it is shown to be prohibited. [Rajendra Prasad Gupta Vs. Prakash Chandra Mishra-(2011) 2 SCC 705 (SC). 3.7 Again, he submits that in any event, the right to present/file the Ex-Bond BOEs include the right to cancel/withdraw the same in absence of any specific prohibition with respect to the same in terms of the provisions of Section 21 of General Clauses Act. 3.8 It is his further submission that the condition of the interest of the reve....
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....ted in a manner so as to render the provisions of Section 46(5) otiose. 3.13 On the contrary, the warehoused goods were subsequently cleared by filing manual BOEs on 10 March 2022, with reference to which an out of charge order was granted. Therefore, the rate of duty is to be determined as on the date of filing of the manual BOEs i.e., the reduced rates in terms of the aforesaid notifications. 3.14 He, therefore, submits that non-permitting substitution would result in a situation whereby customs duty would be recovered from the Appellant, which is not otherwise payable when the Appellant had already reduced the prices of refined palm oil with effect from 14 October 2021. 3.15 Finally, he prays for setting aside the impugned order by allowing the Application of the Appellant for substitution of Ex-Bond BOEs with Into-Bond BOEs and as a consequential relief, refund the excess duties of Customs of Rs.3,64,79,723/- and interest thereon and cancellation of the Bank Guarantee of Rs.23,91,39,462/-. 4. The ld.A.R. for the Revenue has justified the impugned order and he has submitted that in view of the decision of the Hon'ble Bombay High Court in the case of Jain Irrigation S....
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....rom such due date as may be specified by rules made in this behalf, and if he fails to pay the duty within the time so specified, he shall pay interest on the duty not paid or short-paid till the date of its payment, at such rate, not less than ten per cent. but not exceeding thirty-six per cent. per annum, as may be fixed by the Central Government, by notification in the Official Gazette.] [Provided that the Central Government may, by notification in the Official Gazette, specify the class or classes of importers who shall pay such duty electronically : Provided further that] where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section : ] [[Provided also that] if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section.] Section 61 (c) in the case of any ot....
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....ion 47(2) of the Customs Act 1962, which provides that where the importer fails to pay the import duty within 5 working days from the date on which the Bill of Entry for home consumption is returned to him for payment of duty, he shall pay interest on the amount of duty till the date of payment of the duty, at the rate fixed by the Central Government. A doubt has been raised whether such interest under Section 47(2) is payable on goods deposited in a warehouse and for which a Bill of entry for home consumption is filed under Section 68 of the said Act, if the importer fails to pay the duty within 5 working days from the date on which such Bill of Entry filed under Section 68 is returned to him for payment of duty. 2. The matter has been examined by the Board. As per Section 46 of the Customs Act, 1962, the importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form. The provision regarding payment of interest for delayed payment of duty after the return of Bill of Entry is contained in Section 47 which reads as under : ....
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....ry of the said warehousing period (including such extended period), till the date of payment of duty on the warehoused goods. Thus, when a provision has been made for warehousing of imported goods, without payment of interest for a specified period, it is not the intention to charge interest within the said interest-free period, even if duty is paid after 5 days after return of the ex-bond Bill of Entry. Interest in any case is chargeable if the warehoused goods remain in the warehouse beyond the permitted period for the period from the expiry of the said period till the date of payment of duty on the warehoused goods. 7. In view of the foregoing, it is clarified that the provisions of Section 47(2) are not attracted in case of clearances made under Section 68. Consequently, no interest is liable to be paid on goods deposited in a warehouse and being cleared for home consumption by filing the Bill of Entry prescribed under Section 68 of the Act, ibid, for delayed payment of duty i.e. if the importer fails to pay the duty within 5 working days from the date on which such Bill of Entry is returned to him for payment of duty. However, interest on warehoused goods is payable w....
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.... Section 46 (5) of the Act. The said order was challenged by the ld.Commissioner (Appeals), who held in the impugned order that if in this case, the Bills of Entry for home consumption was allowed to be withdrawal/cancellation and the fresh Bills of Entry for home consumption was allowed for clearance of the same from warehouse, i.e.the impugned goods, there will be a substantial loss of revenue, which means that the ld. Commissioner (Appeals) himself is of the opinion that the conversion of home consumption Bills of Entry can be allowed/cancelled and reinstated the warehouse Bills of Entry. But he held that if the same is done, then there will be a substantial loss of revenue in terms of Section 46 (5) of the Customs Act, 1962. 8.3 We find that the Bill of Entry is to be filed under Section 46 of the Act and Section 46 (5) of the Act, provided that the proper officer may permit substitution of Bill of Entry for home consumption for a Bill of Entry for warehousing or vice versa if there is no loss of revenue and there should not be any fraudulent intention . 8.4 Section 68 of the Act provided for clearance of warehoused goods for home consumption that as per the said provisio....
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....ystems (supra) is not applicable to the facts and circumstances of the present case and have no relevance in this case. 12. We find that the impugned order itself, the ld.Commissioner (Appeals) has observed that if the request of the appellant is to be considered under Section 46 (5) of the Act, then there will be a substantial loss of revenue and the said order has attained finality. Therefore, the issue is before us that for consideration of the claim of the appellant for withdrawal/cancellation of the Ex-Bond Bills of Entry and reinstatement of Into Bond Bills of Entry on 08.10.2021, whether there is a revenue loss to the Revenue or not ? 13. Admittedly, on 08.10.2021, there is no change of rate of duty and till three months, in terms of Section 61 (2) of the Act, the appellant is not required to pay any interest. 14. Therefore, we have to examine the issue in the light of the CBEC Circular dated 12th May, 2009 which prescribed that in case of goods deposited in a warehouse and being cleared for home consumption, the following conditions are to be satisfied : "(a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed....
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.... half later in January, 1997. The order of the Commissioner is based upon the literature relating to the product that the appellant had filed during the hearing held in December, 1996. There has thus been inordinate delay with the investigation and in the adjudication. But for this delay, the appellant would not have been deprived of the benefit of the exemption. It is a well settled principle of law that no authority can be taken advantage of its own wrong doing. The option offered to the appellant in the letter dated February 1996 is illusive and not real. We are of the view that the judgment of the Supreme Court in Priyanka Overseas Pvt Ltd v. Union of India - 1991 (51) E.L.T. 185, relied upon by the appellant also followed in a latter judgment in Kuil Fireworks Industries v. CCE - 1997 (95) E.L.T. 3 would apply. We reproduce below paragraph 2 of this judgment : "Had the customs authorities passed order in accordance with law the same result would have followed as had been done on December 17, 1987 ... There is no valid reason as to why the same procedure should not have been followed in respect of the remaining goods in respect of which the bills of entry were filed on....