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2022 (2) TMI 801 - AT - CustomsRejection of request for extension of warehousing period and reexport in respect of 21 consignments of imported capital goods - rejection only on the ground that with reference to the bonded goods the SCN was issued and demand was confirmed and the same was upheld by the Tribunal - HELD THAT:- Even though the demand was confirmed but the goods are still lying in the warehouse and not cleared there from the custom duty is payable only at the time of clearance from the warehouse for home consumption. So long the goods remained in the warehouse no custom duty required to be paid - In the present case the appellant’s request is to allow the re-export of the bonded goods. When the bonded goods isexported without taking a clearance for home consumption no custom duty can be demanded on such re- export of the goods. On perusal of provision of Section 69 it is clear that warehouse goods are allowed to be exported from the warehouse without payment of duty. In the present case this fact is not under dispute that the goods which sought to be exported are indeed warehoused goods as the same are still lying in the Warehouse. As per this statutory provision even though the duty was otherwise confirmed by the adjudication process the same is payable only when the goods are cleared for home consumption but by virtue of Section 69 when the appellant seeks export of goods from the warehouse itself the same shall be allowed without payment of duty. As regard the provision under Section 72(1)(d) of the Customs Act, 1962 it indicates that where bonded warehoused goods have not been cleared from home consumption, the proper officer may demand the duty and the owner of such goods shall forthwith pay full amount of duty chargeable on account of such goods together with all penalties , rent, interest etc and if owners fails to pay the amount demanded under subsection(1) the proper officer may detain the said goods and thereafter sell them after notice to the owner in terms of Section 72(1) (d)ibid. In our view this provision applies firstly when the department wish to sell the goods by auction. Secondly, only in case when the appellant failed to clear the goods for home consumption. In the present case it is the appellant’s request to allow the re-export of the goods therefore, in terms of the circular dated 14.01.2003 despite the provision under section 72(1)(d) the re-export is permissible without payment of duty. Therefore, there is no conflict between the board circular 03/2003-Cus dated 14.01.2003 and Section 72(1)(d) of the Customs Act, 1962 as the said section is applicable only in case when the goods are cleared for home consumption or in case the appellant do not intend to clear the goods and department proceed to sell the goods by auction. In the present case neither the goods were cleared for home consumption nor the department has initiated any action for sale of the goods. Therefore, in terms of the board circular 03/2003-Cus dated 14.01.2003 the appellant is entitled for re- export of the goods without payment of duty and consequently also entitled for extension of warehousing period - the re-export of the imported goods was allowed on payment of 2% differential duty. This benefit is alternatively available to the present appellant also. However, since the appellant sought to export the goods from warehouse itself, even the appellant is not required to pay 2% duty as it is already held that in the case of warehoused goods the export should be allowed without payment of duty. The appellant is allowed to re-export the warehoused goods without payment of duty/fine/penalty if any - the warehousing period of the imported goods shall also be extended for 6 Months or further period within which the goods are re-exported - appeal allowed - decided in favor of appellant.
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