Home Case Index All Cases Customs Customs + AT Customs - 2013 (11) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (11) TMI 245 - CESTAT NEW DELHIWarehousing - Applicability of Circular No. 128/95-Cus. - Applicability to private sector warehouses or public sector warehouse - Held that:- On perusal of Section 45 of the Customs Act, 1962, it appears that custody of the imported goods shall be of such person as may be approved by the Commissioner until those are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. Sub-section (2) of Section 45 cases certain responsibilities on the custodian who is approved under Sub-section (1) of Section 45 by the Commissioner. The said section does not specify about penal consequence of law. Once there is no penal consequence prescribed under the law and that has not been invoked in Para 35 of the impugned order, there cannot be mechanical imposition of penalty because there was circular issued by the Board. Section 35 also does not throw light about guidelines to be issued by the Board. But it is mandate of that section that approval of the Commissioner is necessary to the custodian of the goods. Even that section does not empower the Commissioner to prescribe any condition or restriction. Therefore, intention of the Circular cannot be confused with the mandate of Section 45 of the Customs Act, 1962. Hon’ble High Court of Andhra Pradesh accordingly held that the Circular is to be read in the context of private sector participation which probably is the situation calling for approval under Section 45 of the Customs Act, 1962. In view of the clear distinction between the two sectors, mandate of Section 45 of Customs Act, 1962 and finding of no prejudice caused to Revenue, appellant succeeds on all these grounds - Following decision of Sujana Steels Ltd. v. CCE, Hyderabad [2000 (9) TMI 82 - HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYD.] - Decided in favour of assessee.
|