TMI Blog1998 (12) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... to be removed/cleared from the docks. In arriving at the said conclusions, he has examined all relevant provisions of the Act. His conclusion is that when the goods rig Ed-holt was removed on 17/18-4-89 by the appellants, though no doubt with permission of the Assistant Collector (Export) and the Deputy Collector, duty leviable on it should have been discharged by the appellants on or before the said date. Removal of the rig Ed-holt by the appellants without payment of the appropriate duty on 17/18-4-89 as leviable on that date, calls for recovery of the said duty. Hence the application of provisions of Section 28 of the Customs Act. 4. Learned Advocate, Dr. L.M. Singhvi for the 1st appellants, which alone is required to bear the burden of duty on the rig imported by them, contends that the said finding/conclusion is not sustainable in the facts and circumstances of this case. He has drawn attention to the fact that the rig Ed-holt, was declared in I.G.M. 338 dt. 2-2-89. Permission for removal of the same was given by Assistant Collector (Export)/Deputy Collector. This permission can be treated as a provisional removal of the goods liable to assessment of duty subsequently. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 46, assessment or provisional assessment of the goods entered in the Bill of Entry under Section 17 or Section 18, as the case may be, and then alone question of passing an order for clearance or removal of goods under Section 47 ibid. arises. There is no provision for removal or clearance of dutiable goods without filing a Bill of Entry as aforesaid. Therefore, if the dutiable goods have been removed without propoer payment of duty, the said duty becomes payable. He submits provisions of clause (c) of sub-section (1) of Section 15 ibid. will come into play. Effect of clause (c) regarding the date of payment of duty being the date for determination of rate of duty would be the date on which duty ought to have been paid i.e. on the date of removal of goods because duty in any case must be paid before removal of goods under Section 47 ibid. 8. We have carefully considered the pleas advanced from both sides regarding the date for determination of rate of duty and whether a Bill of Entry can be filed after removal of goods from the customs area and all other related issues relating to demand of duty. We observe, as rightly pointed out by the appellants, that rig Ed-holt i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded above. The second appellants (Shipping Agent) applied to to Asstt. Collector (Export) for clearance of rig Ed-holt for Bombay High vide their letter dated 17-4-1989. They also enclosed a copy of letter dated 17-4-89 from ONGC and an inward clearance certificate dated 6-2-89 under section 42 for rig Ed-holt. Had their intention been to declare Rig Ed-holt as a cargo, its importer (1st appellants) would have filed a Bill of Entry under section 46 and sought its clearance in accordance with law. Such a clearance would have been given after payment of duty due on rig Ed-holt . Further, the letter for clearance would have been filed by the 1st appellants or its C.H.A. to the Asstt. Collector (Appraisement) who is the proper officer and not to the Asstt. Collector (Export). Shipping Agent, who is concerned with clearances of ship/vessels used as conveyance under Section 42, could not have filed the said letter dated 17-4-89 as seeking permission for clearance of rig Ed-holt, had it been treated by the appellants as cargo. From these facts circumstances, it is clear that request for clearance of rig Ed-holt and permission granted by Asst. Collector (Export) and Deputy Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fides of the appellants that there was no intention to evade payment of duty. It is further pointed out on behalf of the appellants that amendment made by Asstt. Collector (Imports) takes its effect from the date of filling of IGM i.e. 2-2-89. We have already held in previous para that this action of submission of application dated 28-6-89 does not have any such connotation of clear bona fides. As regards their second argument, we do not disagree to their claim that the amendment takes effect from the date of their original declaration in the normal circumstances. However, in the facts and circumstances of this case, this claim cannot be accepted because the purported cargo (Ed-holt), to which the amendment relates, has already been taken away from the custody of the Customs/Port authorities in the garb of port clearance of a vessel under Section 42 ibid. without payment of duty, although admittedly due duty was payable, after assessment of the vessel on a Bill of Entry. We cannot forget that on the date of physical removal of Ed-holt i.e. on 17/18-4-1989, there was no amendment of IGM dated 2-2-1989. 13.2. In view of the foregoing discussion, we have no hesitation in holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate from the competent authority. Requirement of certificate, submits the ld. Advocate for the appellants is only a procedural condition. It is further submitted that certificate in any case was obtained on 23-8-1989 and produced subsequently. That certificate was duly considered and the benefit of exemption to the goods was extended by the assessing officers while assessing the Bill of Entry filed subsequently on 29-6-1989 after amending the I.G.M. Therefore, in the face of this certificate, now in any case available on record, no duty liability devolves on the first appellant. Delay in production of the certificate does not take away the benefit of exemption. For this proposition, ld. Advocate relies on - (i) 1992 (57) E.L.T. 449 (Oil India Ltd. v. Collector of Customs. (ii) 1991 (56) E.L.T. 470 (Collector of Central Excise v. Suburban Engg. Works (Cal.) P. Ltd. (iii) 1988 (36) E.L.T. 320 Collector of Central Excise v. TISCO (iv) 1989 (39) E.L.T. 494 (S.C.) (Auto Tractors v. Collector) 18. As against the above submissions, ld. Consultant for the Revenue has submitted that in the instant case, as pointed out by the adjudicating officer, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 134/89-Cus. had been issued on 31-3-1989. 19.2 Ld. Advocate Dr. L.M. Singhvi s submission is that time of production of certificate is merely a procedural condition in the notification. A procedural deviation by the appellants should not deprive them of a substantive benefit. In the normal run of notifications, this plea would have been valid and the Tribunal has taken a view that this is a procedural requirement and should not deprive an importer of a substantive benefit. Even when such a notification laying down the condition of production of a certificate at the time of clearance of the goods is there, benefit of such a notification has been extended to an importer if the importer had applied to the competent authority well before clearance of the goods [see Wockhardt Medical Centre v. C.C. - 1993 (66) E.L.T. 522 (T)]. 20. But the factual background in this case is totally different. There was no Bill of Entry filed by the importer before removal of the goods as in all cases of this nature relied upon by the appellants. The goods, (qua dutiable cargo) were removed without permission of the proper officer on 17/18-4-1998 as already found by us. They had not applied for ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of duty cannot arise in such facts and circumstances. 22.2 Ld. Consultant Shri K.M. Mondal for the Revenue on the other hand has urged that duty became payable on the rig on 17/18-4-1989 when it was removed from the customs area without payment of duty and without the permission of Asst. Collector (Appraisement) - the proper officer. Once this fact is accepted, time-limit for issuing show-cause notice has to be reckoned from that date. In the facts and circumstances of removal of the rig by a series of wilful mis-statements and suppression of facts on the part of the two appellants, extended limitation of five years for demand of duty would be available to the Revenue. That limitation of five-years, available to the Revenue, does not get forfeited simply because a Bill of Entry was later filed and an assessment was made extending the benefit of full exemption under Notification 134/89-Cus. 22.3 Having given our careful consideration to pleas of both sides on this issue, we are inclined to agree with the submission of the ld. Consultant for the Revenue. We have already held that removal of the rig qua dutiable cargo was without the permission of the proper officer i.e. concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths would have been Rs. 3.24 Crores. The said appellants must have earned for the said period at the rate of 24500 U.S. Dollars per day as per the contract with ONGC available on record. It works out to more than Rs. 20 Crores. Keeping in view the above figures the rig being not available for confiscation although it was clearly liable to confiscation under Section 111(f) and (j) and the delibrate acts of omission and commission of the appellants, penalties of Rs. 20 Crores and Rs. 5 Crores imposed on the appellants cannot be said to be unreasonable. We confirm the said amounts of penalties. 24. Appeals of both the appellants are thus rejected. 25. Before parting with this order, we may deal with another plea taken by the ld. Advocates for the appellants. They have submitted that the out of charge order dated 8-11-1989 under Section 47 of the Customs Act passed by the authorities on assessment of the rig declared in the Bill of Entry filed on 29-6-89 has become final. It could not be re-opened except by following the procedure laid down in section 129D ibid. We are unable to accept this plea in view of Apex Court s judgment in the case of Jain Shudh Vanaspati reported in 1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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