9911796707
TMI Blog1985 (3) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... rief facts of the case are : 4. On 14-9-1982, the appellant's Accounts and Materials Manager at Visakhapatnam wrote to the Assistant Collector of Customs (Preventive), Visakhapataam, referring to statements, in respects of their private hooded warehouse. Licence No. 7/82, pointed out that due to certain organisational changes change of personnel both on the part of the appellant's office and that of Customs Department the appellants were unable to connect the various records to compile the required statements. The Assistant Collector was also requested to depute an officer to verify the contents of the warehouse. In consequence, the inspection of the warehouse was done by officers of the Custom House on 17-9-1982, 20-9-1982, 27-9-1982, 30-9-1982 and 3-11-1982 in the presence of the appellant's representatives. It was found then that (i) certain goods listed out in Annexure A to the first Show Cause Notice dated 15-1-1983 referred to below was not in the bonded store-room but in a second room adjoining the room licensed here above; (ii) the appellant had not taken action to clear the goods belonging to consignments listed in Annexure B either for home consumption or warehousin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring, the Additional Collector decided that "having regard to the facts and circumstances of the case, as far as the procedural lapses are concerned", he was convinced that there are no mala fides involved ; hence, he did not propose to cancel the licence issued to the appellant; nor did he propose to confiscate the goods or impose a penalty on them. He dropped the charges apparently with reference to the first Show Cause Notice. With reference to the second Show Cause Notice he confirmed the demand for payment of duty. In doing so, he did not accept the plea of the appellant that documents with the appellant would show that the goods in respect of which duty is demanded had in fact been placed on board fishing trawlers belonging to the appellant. In particular, he noted that on verification, it was found "that the Company had been following the procedure of obtaining the signature of skipper of the trawler on the shipping bill as well as on a receipt in token of receipt of the goods, whenever goods were received for fitment to the trawler. In respect of the goods in question there is no document to prove actual receipt of the goods by skipper". Hence he concluded that there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industan Shipyard Limited v. Collector of Customs, Madras' - Appeal No. CD(T) (MAS) 78/80, dated 23-12-1982 in which the Bench had observed that the provisions of law are enforceable notwithstanding an earlier practice to the contrary. He justified the demand in terms of Section 72(1)(a) and (d) of the Act. Section 72(1)(a) provides that where any warehoused goods are removed from a warehouse in contravention of Section 71 duty could be demanded. Section 72(1)(d) provides that in respect of goods to which a bond has been executed under Section 59 had not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer, duty could be demanded. He then referred to Section 71 which prohibits the removal of goods from the warehouse except as provided under the Act ; and Section 69 provides that goods for export will have to be covered by a shipping bill presented in the prescribed form and an order for clearance for export obtained from the proper officer. He also explained that information regarding goods cleared in an unauthorised manner has been obtained from the bond register maintained by the Department in the Custom House itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ample copies of which were made available during the course of series of hearings before us. The operative part of one bond reads, "Now the condition of the above written bond are such that if the said M/s. Union Carbide India Limited, Gandhigram, Visakhapatnam or Their heirs and representative shall deliver or to cause to be delivered to the said Collector within 15 days or such extended period as may be allowed by the Asstt. Collector of Customs from the date hereof the clearance certificate signed by proper officer of Customs at Visakhapatnam or if the said Importer, their heirs or representative or any of them shall in lieu of delivery of such clearance certificate on demand by the said Collector pay or cause to be paid to heirs on behalf of the President of India, the sum of Rs. . . . plus any fine and penalty if adjusted for violation of the condition when the above written bond shall be paid and no effect otherwise bond shall be and remain in full force and vigour". It is also seen from a Photostat copy of the telegram dated 17-12-1981 that Vizag Customs has intimated the Asstt. Collector of Customs, Import Noting Deptt., Custom House, Calcutta, of the receipt of a series ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Section 49 relating to storage of good's; what is permitted in Section 49 is storage as distinct from the deposit in a warehouse. None of the provisions of Chapter IX relating to "Warehousing" would obviously apply to the goods stored in a warehouse in terms of Section 49. We accordingly find that in respect of goods covered by Annexure D for which also the demand has been confirmed by the Addl. Collector are not "warehoused goods" and hence that part of the demand cannot be sustained in terms of Section 72 of the Act. It is set aside. 11. In respect of goods for which a bond has been executed under Section 59 and which were not found on verification in the warehouse (that the good covered by Annexure C to the Show Cause Notice), we uphold the plea of the Department that the party had not accounted for the goods as provided in the Act. The plea that internal documentation of the company would show that they have in fact been placed on board the trawlers and hence exported in terms of Section 69 of the Act is not supported by documents prescribed under the Act. The demand in respect of these goods has been correctly made and confirmed by the Additional Collector. That par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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