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2015 (10) TMI 1774 - KERALA HIGH COURT

2015 (10) TMI 1774 - KERALA HIGH COURT - 2015 (325) E.L.T. 673 (Ker.) - Clearance of where-housed goods - Effective rate of duty on Ex-Bond clearance - rate of duty changed after 'out of charge' order issued - Whether it was lawful on part of Respondent in demanding differential amount of duty on the basis of notification dated 03.08.2001 on balance quantity of consignment covered by Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively? Revenu .....

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vate warehouse stood cancelled before 06.08.2001, the date of which Ext.P6 notification dated 03.08.2001 issued by Respondent, petitioner is not liable to pay differential duty - Respondent shall pass appropriate orders releasing the bank guarantee for differential duty amount in terms of orders of this Court, within a period of one month Decision made in the case of Priyanka Overseas (P) Ltd.'s case (supra) [1990 (11) TMI 145 - SUPREME COURT OF INDIA] followed Decided in favour of the asses .....

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olein, which is a refined, bleached and deodorised form of palm oil, through various Ports in India. 2. The petitioner, in the course of its business, entered into Exts.P1 and P1(a) contracts dated 16.02.2001 and 30.05.2001 respectively with M/s.Aavanti Industries Private Limited, Singapore, for the import of RBD Palmolein (edible grade) in bulk. The foreign seller shipped the goods against various Bills of Lading during the period from 04.06.2001 to 14.07.2001 in vessels 'HOKUSHIN VOY. 13/0 .....

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nd 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 respectiv .....

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bmitted on 03.08.2001, which was assessed and duty of 2,77,60,341/- was paid by cash on 04.08.2001. The warehousing of the subject consignment was in a private bonded warehouse at Wellingdon Island, Cochin. The bonds executed in terms of Section 59 of the Customs Act, 1962 in order to secure the revenue stood cancelled by operation of Section 73 of the Customs Act, once the duty has been rightly assessed, paid and accepted without any reservation by the Department on the basis of declared price. .....

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tively, the duty in respect of which has already been paid and accepted on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, on the premises of Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001 of the 1st respondent, wherein 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. In similar manner, the 2nd .....

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of certiorari to quash the said notification 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 .....

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r 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 Appeal Nos.7801-7811 of 2004 held that, Notification No.36/2001-CUS (NT) dated 03.08.2001 (Ext.P6) came into force only on 06.08.2001, in as much as it was offered for sale only on that date. Paras.1 to 4 of the order read thus; "1. The respondents herei .....

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nsignment from the warehouse after payment of the duty in the manner aforesaid. However, when it wanted to remove the balance quantity, the same was denied. Thereafter, a notice was received by the respondent which was issued by the appellant stating that with effect from 03.08.2001 (incidentally this is the date on which the bill of entry was filed and goods were cleared by the respondent as aforesaid), the tariff value in respect of RBD Palmolein had been raised to USD 372 per metric ton and t .....

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state that in these proceedings, the respondent has ultimately succeeded inasmuch as this plea has been accepted and the Division Bench of the High Court has concluded that notification issued under Section 14(2) of the Customs Act cannot be held to have come into force with effect from 03.08.2001. There was some dispute as to whether the notification was published on 03.08.2011 itself or it was published on a later date. However, from the record, it gets revealed that the notification was sent .....

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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 publish .....

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at an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the pubic, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituent .....

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4875-76 of 2015 and 9661 of 2014 and the said order reads thus; "On the facts of these appeals as well, we find that though the notification may have been published on the date when the goods were cleared, it was not offered for sale by the concerned Board, which event took place much thereafter. Therefore, it was not justified and lawful on the part of the Department to claim the differential amount of duty on the basis of said notification. These appeals are, accordingly, allowed only on .....

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e 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 04.07.2001, 20.07.2001 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 .....

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nd 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 04.07.2001, 20.07.2001 and 23.07.2001 respectively, the d .....

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Bill of Entry No.2511 for 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 has been assessed and duty of 5,94,04,644/- paid on 02.07.2001, 06.07.2001, 23.07.2001 and 24.07.2001. On payment of duty on the declared value of the goods, as assessed by the proper officer, the petitioner released 4437.278 MTs of the subject consignment. The balance quanti .....

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ing the period from 02.06.2001 to 3rd week of July, 2001. Bill of Entry No.1825 for the said consignment was submitted on 23.07.2001, in order to clear the goods for home consumption. Ex-Bond Bill of Entry No.3407 dated 03.08.2001 was submitted on 03.08.2001, which has been assessed and duty of 2,77,60,341/- has been paid by cash on 04.08.2001. 13. However, the 2nd respondent refused to release the balance quantity of 1318.150 MTs covered by Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 0 .....

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001, 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 .....

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offered for sale only on that date. 14. Section 15 of the Customs Act, 1962 (hereinafter referred to as 'the Act') prescribes the date for determination of rate of duty and tariff valuation of imported goods. Sub-section (1) of Section 15 of the Act, as it stood prior to Finance Act, 2003 (Act 32 of 2003), reads thus; "15. Date for determination of rate of duty and tariff valuation of imported goods:- (1) The rate of duty and tariff valuation, if any, applicable to any imported goo .....

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inwards of the vessel or the arrival of the aircraft by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be." 15. In Commissioner of Customs, Calcutta v. Biecco Lawrie Ltd. [2008 (223) ELT 3 (SC) : 2008 (3) SCC 264] a three-Judge Bench of the Apex Court held that, in the case of goods cleared from warehouse under Section 68, clause (b) of sub-section (1) of Section 15 of the Act provides .....

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ds for home consumption under Section 68 of the Act will be complete once duty on 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. On clearance for home consumption the goods ceased to be imported goods within the meaning of the Act and the provisions of Section 15(1)(b)could not be applicable. The Apex Court held further that, when the full duty stood paid and the Customs Officer had als .....

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e 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 ra .....

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sumption had been presented in the prescribed form much prior to the coming into force of the amended provisions providing for enhanced rate of duty. The import duty leviable had been paid and the order of clearance of the goods for home consumption had been made by the proper officer. On the fulfilling of the requirements of Section 68, Section 15(1)(b) would cease to operate. Section 49, provides that in the case of imported goods, whether dutiable or not, which have been cleared for home cons .....

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ply to such goods. Section 68 falls in Chapter IX. Section 15(1)(b) expressly refers to the clearance from the warehouse under Section 68 and the same would not be applicable to the present case. 15. Section 15(1) provides for the rate of duty and tariff valuation applicable to any 'imported goods'. The term 'imported goods' is defined in Section 2(25) of the Act to mean any goods brought into India from a place outside India, but does not include goods, which have been cleared f .....

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of the goods from the warehouse, is applicable. 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 .....

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e 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 goods removed in smaller lots have to be treated as cleared for home consumption." 16. In Biecco Lawrie Ltd.'s case (supra), the three-Judge Bench relied on the judgment in Bharat Surfactants (Private) Ltd. and another v. Union of India (UOI) and another [1989 .....

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91 (55) ELT 3 : 1991 Supp (2) SCC 86], D.C.M. and another v. Union of India and another [(1995) Supp (3) SCC 223], Dhiraj Lal H. Vohra and others v. Union of India and others [1993 Suppl.(3) SCC 453] and Union of India and others v. Apar Private Ltd. and others [1999 (6) SCC 117]. 17. In Priyanka Overseas (P) Ltd. v. Union of India [1991 (51) ELT 185 (SC) : 1991 Supp (1) SCC 102] the Apex Court held that, if the Bills of Entry were filed under Section 68 of the Customs Act and the Customs Office .....

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from a warehouse under Section 68, the date on which the goods are actually removed (emphasis added) from the warehouse. There can be no manner of doubt that the term 'actual removal' is even more stronger than the term 'physical removal' and the intention of the Legislature in using these words clearly stipulates the actual removal of the goods from the warehouse. The rate of duty and tariff valuation on the imported goods may be changed from time to time and as such the Legisla .....

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stoms 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 war .....

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o pay duty on the balance quantity of 6746.468 MT of Palm Kernel and if so, what should be the rate of duty. In determining this question it must be borne in mind the statutory principle that if a party discharges its liability by complying with the requirement of law, and presents papers for clearance of goods, it is obligatory on the Revenue authorities to pass the order immediately thereon. If the Revenue authorities either refuse to pass the order on some erroneous or imaginary grounds or on .....

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appellant was liable to pay redemption fine and since it had not paid the said amount, the goods were not liable to be released. The High Court held that the imposition of redemption fine was non est and the petitioner was within its right to claim release of goods without paying any redemption fine, on the day it complied with the formalities under Section 68 of the Act. Section 68(c) of the Act prescribes an official function which was not performed by the Customs authorities due to entertain .....

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imported goods in a private warehouse, the provisions of Sections 58, 59, 68 and 73 of the Act would be applicable. After referring to Para.15 of the Central Manual published by the Director of Publications, Customs and Central 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 cancella .....

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on 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 authorities permit the storage of imported goods in a private warehouse, th .....

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tity of 11500 MT. Endorsement to that effect was made on the licence of warehouse and keys of the godown were also handed over to the appellant simultaneously, as a result of which though the goods remained in the said godown but not as a warehouse, instead it was treated to be a private godown of the appellant, and it was allowed to remove the goods without payment of any duty. 39. There is no dispute that the remaining goods were also stored in a private warehouse and the appellant had filed t .....

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mining the actual date of removal of goods from warehouse in terms of Section 15(1)(b) of the Act. The functioning of private warehousing has been elaborated therein. Clause 10 of the Manual prescribes the type of buildings which can be approved as private warehouses under Section 58 of the Act. Para 15 of the Manual provides for purposes of Section 15(1)(b) of the Act, that if the goods are in private warehouse the date of cancellation of the licence of the private warehouse should be taken as .....

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f 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 g .....

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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 and obtained 'out-of charge' from Customs on 04.08.2001 itself. Though a copy of Ex-Bond Bill of Entry No.3407 dated 03.08.2001 is not on record, the learned Senior Counsel made available a copy of the same for perusal of this Court, after furnishing copy to the learned Standing Counsel f .....

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ns of Section 15(1)(b) could not be applicable. When the full duty stood paid and the Customs Officer had also permitted clearance of the goods, such goods cannot be held to be 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. The Apex Court held further that, where duty on the warehoused goods is paid and out of charge order for home consumption was made by the prop .....

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ention of the 2nd respondent that 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, is mainly relying on Ext.R1(b) Circular No.22/2001 issued by the Deputy Commissioner of Customs (Tariff Unit), Cochin dated 6.8.2001 and also Ext.R1(b)(2) Circular No.46/2001-CUS dated 10.08.2001 of the Central Board of Excise and Custo .....

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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 .....

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hus; "2. It was noted by the three Judge Bench that the effect of the aforesaid observations was noted in several decisions. In Kalyani Packaging Industry v. Union of India and another (2004 (6) SCC 719 : 2004 (168) ELT 145), it was noted as follows; "We have noticed that para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722) is being misunderstood. It, therefore, becomes necessary to clarify para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722). One of us (Var .....

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e Department had granted benefits of exemption notifications. It was submitted that on the interpretation now given by this Court in Dhiren Chemical case the Revenue was likely to reopen cases. Thus para 9 (para 11 in SCC) was incorporated to ensure that in cases where benefits of exemption notification had already been granted, the Revenue would remain bound. The purpose was to see that such cases were not reopened. However, this did not mean that even in cases where the Revenue/ Department had .....

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mean that Courts/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 .....

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rovisions 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 03.08.2001 (Ext.P6) came into force only on 06.08.2001, in as much as it was offered for sale only on that date. 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, Ext.R1(b) Circular No.22/2001 issued by the Deputy Commissione .....

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20.07.2001 and 23.07.2001 respectively, on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and that duty in respect of Ex-Bond Bill of Entry No.3407 dated 03.08.2001 was paid on 04.08.2001, are also not in dispute. The duty in respect of Ex-Bond Bills of Entry Nos.3199 and 3407 dated 23.07.2001 and 03.08.2001 respectively, were paid in cash on 24.07.2001 and 04.08.2001 respectively. As held by the Apex Court in Biecco Lawrie Ltd.'s case (supra), the clearance of warehouse goods for home .....

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1)(b) of the Act. 25. In that view of the matter, the conclusion is irresistible 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 fixing the tariff value of RDB Palmolein at US$ 372 came into force, the petitioner .....

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