TaxTMI 
TaxTMI 
2025 (10) TMI 1137
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....the duty of above said un-cleared Bonded warehoused goods under Section 72(1)(d) of the Customs Act, 1962. iii. I impose penalty of Rs. 50,000/- under Section 117 read with Section 72 of the Customs Act, 1962, on the importer M/s Deep Distributors Private Limited, 12/112 Gwal Toll, K.B. Market, Kanpur." 2.1 Appellant imported Beer through Indo-Nepal Border for which they filed warehousing bill of entries as detailed in the table below: Warehousing Bill of Entry Description Quantity in CTN Value in Rs Duty in Rs Number Date 3008149 27.04.2019 Tensberg Premium Strong Beer 500 Ml 1200 515042 566546 6353886 04.01.2020 2200 940593 1034652 3213548 13.05.2019 Tensberg Premium Strong Beer 650 Ml 3600 1304136 1434550 6271332 28.12.2019 2200 723664 796030 2.2 Jurisdictional authorities vide letter dated 27.04.2022 informed that as per the monthly return submitted by the owner of warehouse, following quantities of the warehoused goods were shown as balance: Warehousing Bill of Entry Description Quantity in CTN Number Date 3008149 27.04.2019 Tensberg Premium Strong Beer....
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....re also not recoverable under Section 72(1)(d) of the Act. The Second point is regarding 'proper officer' for demanding the duty in his case and whether the Assistant Commissioner, Customs Sonauli had jurisdiction to decide the case. The third point is regarding applicability of Section 23 of the Act and whether the duty can be remitted in the present case in light of the fact that the appellant tried to clear the goods timely but Ex-bond Bill of Entries couldn't be finalized due to technical glitches. 5.2 Now, I come to the first point whether the demand of duty and interest and imposition of penalty under Section 72(1)(d) of the Act is proper. The appellant pleased that Order-in-Original has been issued following a circular 31/97-Customs which clarified that warehoused goods shall be deemed to be removed if on expiration period neither goods are removed nor extension of warehousing period sought. Thus only section that can cover the case of charging/recovery of Customs duty not levied or not paid would be section 28 but the impugned demand was raised invoking the provision of Section 72. Moreover, pre-SCN consultation was mandatory in case the demand under Se....
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....ies, rent, interest and other charges payable in respect of such goods. In view of the specific provisions in the Section 72, once extension of the time for storing goods in the warehouse is refused, the duty and interest and other liabilities automatically arise. Therefore, the impugned order cannot be found fault with. Accordingly, the appellant has not merits and is rejected." It is clear from the above that the demand of duty under Section 72(1) is justified. Penalty has also been imposed under Section 117 read with Section 72 of the Customs Act, 1962, which is also justified. Here, I found no ground in plea taken by the appellant that in this very case duty, interest and penalty cannot be demanded under Section 72(1) of the Customs Act, 1962. 5.4 Now, I come to the second point i.e. whether the Assistant Commissioner, Customs Sonauli is 'proper officer' for demanding the duty in the instant case. Here, I find that the procedure for filing ex-bond bill of entry is provided under Circular No. 22/2016-Customs dated 31.05.2016, the relevant portion of the said circular is being reproduced hereunder for better appreciation of facts:- 2. "According....
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....ll of entry for clearance of quantity of beer in balance with the respect to the warehousing BE Nos. 6271332 dated 28.12.2019 and 6353886 dated 04.01.2020 as mentioned in Para (iii) of Discussion and Findings of the said O-in-O. The appellant should have relinquished the title of goods before the expiration of warehousing period for remission of duty in terms of Section 23 and 68 of the Act which clearly provides that the owner of any imported goods may, at any time before an order for clearance of goods for home consumption under section 47 or an order for permitting the deposit of goods in a warehouse under section 60 has been made, relinquish his title to the goods and thereupon he shall not be liable to pay the duty thereon. In the present case the appellant has not informed the department regarding relinquishment of his title to the warehoused goods. Further, relinquishment of title after expiration of warehousing period is not permissible. In this regard, in the Appeal No.C/87027/2013-Mum filed by M/s Videocon Industries Pvt. Ltd. Vs CCE (Appeals) Mumbai, Hon'ble CESTAT, Mumbai vide their order dated 27.08.2015 held that: "The central issue to be decided is wheth....
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....nterest and penalty on the expired goods stored beyond prescribed period. Accordingly, I do not find any merit in the appeal. In view of the above, I reject the appeal filed by the appellant and uphold the Order-in-Original No. 11/उप-आयुक्त / सोनौली dated 26.02.2023." 4.3 Order in original records the findings as follows:- (i) I have gone through the records/ documents available with this office and find that the importer has filed the BE No. 3008149, 3213548, 6271332 and 6353886 dated 27.04.2019, 13.05.2019, 28.12.2019 and 04.01.2020 respectively under bond for clearance to bonded warehouse. The consignments of beer having HSN Code 22030000 were cleared under respective BEs and thereafter were warehoused in public bonded warehouse (W.H. Code NGRBU0O1) for which Licence has been granted to MI/s P.J. Trading Company, G4/49, Basement. Transport Nagar, Lucknow-226012 (UP). As the jurisdictional authority, vide letter No. 27.04.2022 informed that as per monthly return submitted by the owner of the bonded warehouse, some goods imported under various Bills of Entry are still being sho....
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....customs duty amounting to Rs.2,83,273/-. However, I find that the only quantity of beer mentioned in column 6 of table 3 has not been cleared by the importer and rest quantity has been cleared and applicable customs duty has been paid. Further, I find on perusal of submission of the importer that they have not filed any ex-bond bill of entry for clearance of the quantity of beer in balance with respect to the warehousing BE Nos. 6271332 dated 28.12.2019 and 6353886 dated 04.01.2020 as mentioned in table-3. (iv) The Party also submitted in the reply to SCN that the challan generation could have been failed possibly because bond amount was not debited at the time of filing of warehousing Bills of entry. (v)However, on going through the ledger available in the EDI system, I find that the bond amount was duly debited with respect to all the Bes in the question. (vi) In view of the above I find that the importer has deliberately not cleared the goods and not paid the Customs Duty on the goods in question. In view of the above, the contention of the importer is not tenable and I also do not find much force in the contention of the importer that the imported goo....
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....uent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. 4 II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. 4.6 Thus in view of above decision, I am of considered view that prescribed period of warehousing would have to be accordingly amended. Appellant have sought for remission of duty in respect of the balance warehoused beer in terms of section 23 of the Customs Act,1962. As per the appellant the goods having lost the self life and of no use they intend to ab....
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....e to the goods at any time before an order for clearance of the goods for home consumption is passed and in case of such relinquishment, the owner will not be liable to pay the Customs duty on such imported goods. In respect of warehoused goods, Section 61 prescribes the period for which such goods can remain in warehouse. Section 72 deals with goods improperly removed from warehouse and it is necessary to set out Section 72 to ascertain the legality of the impugned notice : "72.(1) In any of the following cases, that is to say, - (a) where any warehoused goods are removed from a warehouse in contravention of Section 71; (b) where any warehoused goods have not been removed from a ware house at the expiration of the period during which such goods are permitted under Section 61 to remain in a warehouse; (c) where any warehoused goods have been taken under Section 64 as samples without payment of duty; (d) where any goods in respect of which a bond has been executed under Section 59 and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer; the proper of....
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....ade by the Assistant Collector under Section 72(1)(b) of the Act, it is open for the importer to relinquish the title to the imported goods, provided an order for clearance for home consumption is not passed. In my judgment, the impugned demand is totally unsustainable and is required to be quashed." 4.7 Hon'ble Karnataka High Court has in the case of i2 Technologies Software Pvt. Ltd. [2007 (217) E.L.T. 176 (Kar.)] observed as follows: 14. In the light of the above provisions we are of the opinion that Hon'ble Supreme Court, while interpreting the provisions of Section 72(1) and (2) of the Act as to the improper removal of warehoused goods from the warehouse in the context of determining the date to be considered for quantifying the customs duty on the warehoused goods at the time of their clearance from the warehouse, observed at para 14 of the judgment in Kesorams's case that : "The provisions of Section 68 and, consequently, of Section 15(l)(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 permitt....
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.... is clear that the said proviso has extended the time available to the owner/importer of warehoused goods for relinquishment of title till or before an order for clearance of such goods for home consumption, as mentioned in clause (c) of Section 68, has been made by the proper officer. 23. We find that in the facts of the present case, the relinquishment of title was made by the appellant well in time, as permitted by the Statute as no order for clearance of goods for home consumption was made till that date. We further hold that the issuance of SCN under Section 72(1)(b) for warehoused goods cannot stop the time running and available to the owner to relinquish the title before the order for clearance of such goods for home consumption, as stipulated in Section 77 read with Section 68, is made. 24. We further find that none of the provisions of Section 72 of the Act restrict an owner of the warehoused goods to relinquish the title after issuance of SCN. Even after expiry of bond validity, the title of the goods remains with the owner as is manifested in the language of Section 72(2) of the Act. We further find that similar is the purport of the Board Circular date....