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TMI Blog2004 (12) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... remain where they were (and therefore had not been physically removed) and also, no out of charge order u/s 47 or section 68 had been passed by the proper officer permitting the importer to take charge cash away the goods. The lower authorities have failed to appreciate and take note of the Supreme Court's judgment in the case of Pratibha Processors v. Union of India,[ 1996 (10) TMI 88 - SUPREME COURT] , wherein the Hon'ble Supreme Court, while dealing with a case where an Advance Licence had been produced after the expiry of the bond period, had not only upheld duty-free clearance but also held that no interest could be charged thereon. Board Circular No. 3/2003, completely changed the position with regard to the status of goods remaining in a Warehouse after the expiry of the Warehouse period. This Circular acknowledged that such goods continued to be Warehoused goods and even permitted Export of such goods without payment of duty u/s 69 of the Customs Act or an order had been issued by the Customs authorities demanding duty, interest and other charges on such goods upon expiry of the initial or extended period of warehousing. In view of the findings arrived at, the praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 6.2 of the Export and Import Policy permitting import of goods at the rate of 5% duty and the said licence is produced for debit by the proper officer of the customs at the time of clearance : Provided that for the import of spare parts, the validity period of the licence shall be deemed to be the period permitted for fulfilment of the export obligation in full" (e) When the appellant claimed the benefit of the aforesaid since the goods had "remained uncleared even after expiry of the warehousing period" duty amounting to Rs. 6,02,57,006/- along with interest at the rate in force amounting to Rs. 2,44,53,523/- till 30-11-2001 and further interest at the applicable rate "at the time of clearance" as per provisions of section 72(1) (b) of the Act was required to be paid by the appellant and recovered from it. Para 7 of the notice also alleged that since the appellant had "failed to ex-bond the goods" covered under the three Bills of Entry mentioned above on payment of duty even after expiry of the warehousing period of the goods, it had rendered itself liable for a penalty under section 72 and section 117 of the Act." (f) This show cause notice was adjudicated by the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to the issue of the licences. (ii) Unlike para 7.17 of the EXIM policy concerning the DEEC Scheme which was before the Tribunal in KLJ Plastics' case, the corresponding para 6.6 of the EXIM Policy dealing with EPCG Scheme makes it mandatory for the Customs to grant the EPCG benefit to goods already arrived as long as the following two conditions laid down therein were fulfilled: (iii) Customs duty had not been paid; Goods bad not been cleared from the Customs." It was submitted that the Tribunal had held in that case that it was not open to the Customs authorities to question the Licensing authority's discretion exercised in issuing or amending the licence and Reliance was placed on the decision of the Tribunal in the case of Rama New Prints Paper Ltd. v. Commissioner of Customs, Kandla [2000 (122) E.L.T. 473], to contend that the Licensing Authority had the requisite jurisdiction and power to relax the conditions of the policy or amend the licence retrospective to validate import of goods already received or arrived. Therefore the case of KLJ Plastics would not be applicable. The case of KLJ Plastics Ltd. was apparently a case where a conversion of Bill of Entry was being sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de for the eventuality of an EPCG licence being issued, after an import but prior to clearance of the goods by the Customs, as is apparent from para 6.6 of the EXIM Policy and para 1 of the Notification which required EPCG licence lo be produced for debit by the proper officer of the Customs "at the time of clearance." The expression "cleared from the Customs" and "clearance" appearing in the EXIM Policy and the Notification had to be constructed as referring to either the date of out of charge order passed under section of the Notification which requires EPCG licence to be produced for debit by the proper officer of the Customs " at the time of clearance". [The expression "cleared from the Customs" and clearance'" appearing, in the EXIM Policy and the Notification had to be constructed as referring to either the date of out of charge order passed under section 47/68 of the Customs Act, 1962 or the date when the goods were physically removed from the Lock keys from the Control of Customs in the Ware house. In the present case neither of the two events had taken place as the goods had continued to remain where they were (and therefore had not been physically removed) and also, no ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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