9911796707
TMI Blog2015 (10) TMI 1774X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2001 in vessels 'HOKUSHIN VOY. 13/01' and 'MTL SARAH V. 126'. According to the petitioner, 5755.482 MTs of subject consignment was loaded against those Bills of Lading in the vessel 'HOKUSHIN VOY. 13/01' against Ext.P1 contract, which arrived at Cochin Port and the Bills of Entry for 3155.428 MTs and 2600 MTs were submitted on 11.06.2001, in order to clear the goods for home consumption. Ex-Bond Bills of Entry Nos.2880, 2915, 3167 and 3199 were submitted between 02.07.2001 and 23.07.2001, which were assessed and duty of 5,94,04,644/- has been paid on 02.07.2001, 06.07.2001, 23.07.2001 and 24.07.2001. On payment of the duty for the declared value of the goods, as assessed by the proper officer, the petitioner released 4437.278 MTs of goods. The balance quantity to be removed from the bonded warehouse was 1318.150 MTs out of Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 4.07.2001, 20.07.2001 and 23.07.2001, in respect of which duty has been paid on 06.07.2001, 23.07.2001 and 24.07.2001 respectively. In similar manner, a further quantity of 2540.346 MTs of subject consignment was loaded in the vessel 'MTL. SARAH V. 126' against Ext.P1(a) cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and seeking a declaration that the goods imported by the petitioner, in respect of which duty has been paid on 06.07.2001, 23.07.2001, 24.07.2001 and 04.08.2001 are entitled to be released without payment of any further duty pursuant to Ext.P6 notification. The petitioner has also sought for other consequential reliefs. 5. By order dated 22.08.2001 in I.A.No.41099 of 2001, this Court issued an interim order directing release of the balance quantity of goods covered under Ex-Bond Bill of Entry No.3407 dated 04.08.2001, on the basis of the assessment made by the proper officer and the payment of duty made on 04.08.2001, provided the petitioner furnishes bank guarantee for the differential duty amount. By another order dated 24.08.2001 in I.A.No.41323 of 2001, this Court ordered release of the balance quantity of goods under Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, on the petitioner furnishing bank guarantee for 50% of the differential duty amount and executing bond for the differential duty for the entire quantity. 6. During the pendency of this Original Petition the Apex Court in its order dated 05.05.2015 in Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 in the night. Even if it is to be treated as notification having been published on 03.08.2001 itself, i.e., just before the midnight, an issue has arisen as to whether it could be made effective qua the goods which were already cleared during the day time on the basis of earlier notification. However, it is not necessary to go into this issue at all. 3. What we find is that the High Court has stated that for bringing the notification into force and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening ours and 04/05.08.2001 were holidays. 4. We are in agreement with the aforesaid view taken by the High Court which is in conformity with the law laid down by this Court in Harla v. The State of Rajasthan [1952 (1) SCR 110] wherein this Court formulated the aforesaid principle in the following manner; "Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001 and 23.07.2001 respectively, the duty in respect of which has already been paid and accepted on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and on the subject consignment covered by Ex-Bond Bill of Entry No.3407 dated 03.08.2001, the duty in respect of which has already been paid and accepted on 04.08.2001. 9. Sri.Thomas Mathew Nellimoottil, the learned Standing Counsel for the Central Board of Excise and Customs has fairly submitted that, the contention that Ext.P6 notification came into force only on 03.08.2001 is no more available to the respondents, in view of the above orders of the Apex Court. 10. Heard arguments of Sri.G.L.Rawal, the learned Senior Counsel assisted by Sri.Rajesh Rawal, the learned counsel for the petitioner and Sri.Thomas Mathew Nellimoottil, the learned Standing Counsel for the Central Board of Excise and Customs. 11. The only issue to be decided in this Original Petition is as to whether it was lawful on the part of the 2nd respondent in demanding differential amount of duty on the basis of Ext.P6 notification dated 03.08.2001, on the balance quantity of the subject consignment covered by Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3407 dated 03.08.2001, the duty in respect of which has already been paid and accepted on 04.08.2001. In Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001, the Central Government in exercise of powers vested in it under sub-section (2) of Section 14 of the Customs Act, fixed the tariff value per MT of Crude Palm Oil, RDB Palm Oil and RDB Palmolein at US$ 337, US$ 351 and US$ 372 respectively. According to the 2nd respondent, Ext.P6 notification came into force with effect from 03.08.2001 and as such, the duty for the left over subject consignment has to be assessed at the tariff rate of US$ 372 per MT, as against the declared price of US$ 234 per MT. The said contention, relying on Ext.R1(b) Circular No.22/2001 issued by the Deputy Commissioner of Customs (Tariff Unit), Cochin and Ext.R1(b)(2) Circular No.46/2001-CUS dated 10.08.2001 issued by the 1st respondent is no more available to the 2nd respondent in view of the law declared by the Apex Court in its order dated 05.05.2015 in Civil Appeal Nos.7801-7811 of 2004 that, Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001 came into force only on 06.08.2001, in as much as it was offered for sale only on that date. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the full duty stood paid and the Customs Officer had also permitted clearance of the goods, such goods cannot be held to be the warehoused goods merely for the reason that the same were allowed to be kept in the warehouse on account of an application made in terms of the provisions of Section 49 of the Act. Where duty on the warehoused goods is paid and out of charge order for home consumption is made by the proper officer in compliance of the provisions of Section 68 of the Act, the goods removed in smaller lots have to be treated as cleared for home consumption. Paras.14, 15 and 20 of the judgment read thus; "14. Section 15(1) provides for the date for determination of rate of duty and tariff valuation of imported goods. In the case of goods cleared from warehouse under Section 68, Section 15(1)(b) provides that the rate of duty and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the goods are actually removed from the warehouse. The relevant date for determination of rate of duty and tariff valuation is the date on which a Bill of Entry in respect of such goods is presented for home consumption. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable. But where the goods are cleared for home consumption under Section 46, the duty payable would be as on the date the goods were cleared for home consumption. In the present case, not only the full duty stood paid by the respondent, but the Customs Officer had also permitted clearance of the same, as is evident from the endorsement made on the back of the bill of entries. As such, the goods cannot be held to be the warehoused goods and the same were allowed to be kept in the warehouse only on account of an application made by the appellants in terms of the provisions of Section 49 of the Act. The respondents have been clearing the goods from the storage tank as and when required. They were permitted to store the goods in a private warehouse as if it was their own godown. The goods were stored in the IBP storage tank under an agreement entered into by the respondent with IBP and the storage charges were paid by the respondent. Thereafter, the Preventive Officer Charges were discontinued to be levied. Where duty on the warehoused goods is paid and out of charge order for home consumption is made by the proper officer in compliance of the provisions of Section 68, the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot introduce the concept of deeming provision while determining the question of actual removal of the goods from the warehouse. The rate has to be determined on the basis of the date on which the goods are actually removed from the warehouse and thereafter the question would be examined as to how the relief is to be moulded in case it is found that the Customs authorities were themselves responsible in preventing the importer of goods from actually removing the goods from the warehouse. In a case of the present kind where there is no ambiguity in the expressed intention of the Legislature in determining the date for applying the rate of duty, no juristic principle of deemed removal of the goods can be applied as contended by Mr. Sen. Many contingencies may happen in between the filing of bill of entry and actual removal of the goods from the warehouse for which sometimes the importer of goods may himself be responsible, in some cases the responsibility may lie on the Customs authorities and there may also be contingencies beyond the control of both the parties. In any case the intention of the Legislature being clear, rate of duty is to be applied, as may be in force on the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, which contains directions for determining the actual date of removal of goods from warehouse in terms of Section 15(1)(b) of the Act, the Apex Court held that, for purposes of Section 15(1)(b) of the Act, if the goods are in private warehouse the date of cancellation of the licence of the private warehouse should be taken as the actual removal of the goods for the purposes of Section 15(1)(b) of the Act. Merely because the officer failed to discharge his duties by making illegal demand for deposit of redemption fine the appellant therein could not be held liable to pay duty. Paras.38 and 39 of the judgment read thus; "38. On the question of actual removal of goods for the purposes of determining the rate, of duty payable by the importer under Section 15(1)(b) of the Act it is necessary to bear in mind that the Act provides for two classes of warehouses, under Chapter IX of the Act. Section 58 provides for licensing of private warehouses. Section 59 requires an importer to execute a warehousing bond. Section 68 provides for clearance of warehoused goods for home consumption. Section 73 provides, for cancellation and return of warehousing bond. Whenever, the Customs au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the bills of entry were filed on 28.1.88 for debonding and clearance of goods. Merely because the officer failed to discharge his duties by making illegal demand for deposit of redemption fine the appellant could not be held liable to pay duty. The appellant is therefore entitled to the delivery of goods without paying any duty on 28.1.88 no duty was payable on the goods." 19. In the case on hand, the fact that the warehousing of the subject consignment was in a private bonded warehouse at Wellingdon Island, Cochin, is not in dispute. Sri.G.L.Rawal, the learned Senior Counsel for the petitioner would submit that, on payment of duty on the declared value of the goods, as assessed by the proper officer, the petitioner obtained 'out of charge' from Customs, much prior to 06.08.2001, the date on which Ext.P6 notification No.36/2001-CUS (NT) issued by the 1st respondent, fixing the tariff value of RDB Palmolein at US$ 372 came into force. The balance quantity to be removed from the bonded warehouse was 1318.150 MTs out of Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, in respect of which duty has been paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(2) Circular No.46/2001-CUS dated 10.08.2001 of the Central Board of Excise and Customs. Ext.R1(b) circular states that, in view of Ext.P6 notification dated 03.08.2011, all warehouse Bills of Entry wherein the goods still remain warehoused and all Ex-Bond Bills of Entry wherein the goods are pending physical removal from bond as on 03.08.2001 may be re-submitted forthwith to Appraising Officer (Imports) for re-assessment and collection of differential duty. Similarly, Ext.R1(b) (2) Circular dated 10.8.2001 provides among other things that, if the actual clearance of goods from a warehouse take place on or after 03.08.2001, Tariff Values in Ext.P6 notification will be applicable for determining value for assessment purpose, even if Ex-Bond Bill of Entry may have been presented earlier to 03.08.2001. 22. In Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries [2008 (231) ELT 22 (SC) : 2008 (13) SCC 1] a Constitution Bench of the Apex Court held that, circulars and instructions issued by the Central Board of Excise and Customs are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts/Tribunals have to ignore a judgment of this Court and follow circulars of the Board. That was not what was meant by para 9 of Dhiren Chemical case." xxx xxx xxx xxx 6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the Court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." 23. In the case on hand, the Apex Court in its order dated 05.05.2015 in Civil Appeal Nos.7801-7811 of 2004 has held that, Notification No.36/2001-CUS (NT) dated 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, in respect of which duty has been paid on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and 2540.346 MTs out of Ex-Bond Bill of Entry No.3407 dated 03.08.2001, in respect of which duty has been paid by cash on 04.08.2001. 26. In the result, this Original Petition is disposed of declaring that, if the petitioner had obtained 'out of charge' order for home consumption issued by the proper officer in compliance of Section 68 of the Act and the licence of the private warehouse stood cancelled before 06.08.2001, the date of which Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001 issued by the 1st respondent came into force, the petitioner cannot be held liable to pay differential duty in respect of the balance quantity of 1318.150 MTs out of Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, in respect of which duty has been paid on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and 2540.346 MTs out of Ex-Bond Bill of Entry No.3407 dated 03.08.2001, in respect of which duty has been paid by cash on 04.08.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
