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TMI Blog2009 (5) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... emoved the goods on payment of duty by using DEPB licence. After issue of show cause notice and adjudication and appellate proceedings at the level of Assistant Commissioner and Commissioner (Appeals), it has been held that appellants are liable to pay duty at the rates applicable as 29th November 2001 with interest. Hence the present appeal. 2. Heard both the sides. The learned advocate on behalf of the appellants submitted that when the applications for extension of warehousing period were pending, determination of rate of duty as on the date of completion of extended warehousing period is not correct. In support of his argument he relies upon the decision of the Tribunal in Pradeep Ullal reported in 2001 (133) E.L.T. 428 (Tribunal-Bangalore), PSI Data Systems Ltd. reported in 2006 (200) E.L.T. 612 (Tribunal-Bangalore), Macmillan India Ltd. reported in 2008 (223) E.L.T. 449 (Tribunal-Bangalore). He also submitted that the decision of the Commissioner (Appeals) upholding the levy of interest is not correct due to the fact that payment of duty by debit in a DEPB licence has been held to be availment of exemption and not amounting to payment of duty. In support of this he cites the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the date on which warehousing period ended. The circular cited by the appellants in their support specifically mentions that applications for extension should be made at least 15 days in advance. The application for further extension from 29th of May 2002 was submitted on 5 February 2003 i.e. almost eight months after the expiry of the period of extension requested by them but not granted. Apparently no reminders were sent by the appellants. It is also seen that in the appellants letter dated 26th of November 2001, they have mentioned that the warehousing period has been extended up to 29 November 2001 and extension is required for six months thereafter. Whereas in the letter dated the 5 February 2003, the letter does not indicate any details but simply requests for extension for one year. The letter does not even explain the reasons for the delay in making the application. The two letters, absence of reminder, and the approach adopted by the appellants show that they did not seriously pursue their request for extension of warehousing period. In view of these circumstances, we cannot find fault with the decision of the lower authorities to treat 29 November 2001 as the date f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice alleging that the application seeking permission for extension of the period have become ab initio void and infructuous, as the appellant vide their subsequent letter have asked for ex-bonding. 8. It is admitted by the Commissioner (Appeals) that law empowers proper officer to extend the period of application made by the importer. He has also observed that he agree with the appellant that the department should have taken timely action for accepting/rejecting their application for extension of warehouse period. However, he proceeded to decide the issue in the light of Hon'ble Supreme Court decision in case of M/s. Kesoram Rayon - 1996 (86) E.L.T. 464 (S.C.). The said decision also makes the basis for recording of the order by learned Member (Technical). 9. I have seen the above judgment and find that a pure question of law was the subject matter of the dispute before Hon'ble Supreme Court and it was held by the Hon'ble Apex Court that the date on which the warehouse period or extended period comes to an end, is relevant for determining the rate of duty. There was no request by the assessee in that case to extend period of warehousing. As such, the issue as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first decided. But, there is no explanation coming forth as to why they were not decided. The appellants having made application, have done their part of legal duty and could have done nothing more except to await the outcome of such request, which unfortunately never came. In my view, the appellants cannot be penalized for non-action on the part of the Revenue officer. If the Chief Commissioner, if would have considered the application at the appropriate time, there is every possibility that the same might have been allowed by him in the light of the Board's circular or even if rejected, the assessee was within his right to take any remedial action against such rejection, as permissible under law. After having filed application, they could also have been under bona fide belief that such application having not been rejected by Revenue, are deemed to have been accepted by them. As such, I am of the view that the rate of duty as prevailing on the actual date of removal of the goods would be rate applicable. 10. I further note that the appellants have claimed benefit of Para 5(b) of Notification No. 53/97-Cus, dt. 3-6-97 as amended. The said notification allows clearance of the impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal as under :- (a) M/s. Macmillan India Ltd. v. CC, Bangalore [2008 (223) E.L.T. 449 (Tri.-Bang.)] (b) M/s. Bee International v. CCE, Thane-II [2007 (220) E.L.T. 128 (Tri.-Mum.)]. He submits that the ld. Member (T) proceeded on the basis of the decision of the Hon'ble Supreme Court in the case of M/s. Kesoram Rayon v. Collector of Customs, Calcutta [1996 (86) E.L.T. 464 (S.C.)]. It is his contention that in the case of M/s. Kesoram Rayon (supra), there was no application pending for extension of warehousing period and the said case law is not applicable. He emphasized that in the case of 100% EOU, warehousing period is co-terminus with export obligation or debonding of the EOU whichever is earlier. He relied upon the Board's circular as mentioned in the order of the ld. Members. 14. The ld. DR reiterates the findings of the ld. Member (T). He submits that there is no dispute that no permission was granted for warehousing goods after 29-11-2001. He also submits that mere filing of application for extension of warehousing period is not sufficient unless permission is obtained. He further submits that the appellant had not taken any steps for keeping the goods in the war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee failed to submit their plan to utilize the material. Rather noticee came forward to sought permission to sale goods vide letter dated 17-4-2003. Noticee expressed his inability to use material. So application for extension of warehousing period becomes infructuous ab initio." In my view, the discretionary power for extension of warehousing period is conferred upon the Commissioner of Customs. So, the observation of Assistant Commissioner that application for extension becomes infructuous ab initio and warehousing status of goods came to an end on 29-1-2001, cannot be sustainable. 17. In the case of Macmillan India Ltd. (supra), the appellant a 100% EOU imported various types of capital goods. After certain time, the imported goods became obsolete and, therefore, they wrote a letter to Customs authorities for extending the bonding period and also give authorizations to destroy the capital goods. The Commissioner of Customs following the decision of Hon'ble Supreme Court in the case of Kesoram Rayon (supra) held that once the warehoused period expired, the goods will be deemed to have been improperly removed from warehouse and confirmed demand of duty of Rs. 72,14,076.00 and im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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