TMI Blog2001 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... on 59 of the Act. 1.2 As stated heretobefore, because of the nature of the product and its volume, SKO after payment of Customs duties, as assessed on the Bill of Entry for home consumption, continues to be remained in the same tankage as per established practice because of non-availability of storage facility. The appellant reiterates that after payment of customs duties as assessed on the Bill of Entry for home consumption and clearance of the goods for home consumption, clearance of the goods for home consumption is permitted by the proper officer SKO cannot be stored in some other warehouse and remained in the same warehouse where the goods were originally stored. The transaction of SKO is made from the same storage tank. In other words, at the time of sale, duty paid SKO is drawn from the same tankage and supplied to the dealers/customers. 1.3 On 15-5-1998 the appellant imported 5873.156 M.T. of SKO and warehoused the same in a private warehouse belonging to M/s. IBP at Budge Budge, being tank No. 1 under WR bill of entry No. 302(OIL), dated 19-5-1998. At the time of importation, SKO did not attract any basic customs duty and was leviable to only countervailing duty @ 10% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of SKO from the warehouse during the period from 1-6-1998 midnight to 6-6-1998 without payment of basic customs duty and additional customs duty and as such evaded the payment of duty of Rs. 12,78,116/-. 1.9 The above show cause notice culminated into the impugned order passed by the Commissioner of Customs, Customs House, Calcutta confirming the said demand of duty and also imposing personal penalty of Rs. 5,000/- on the appellant. Commissioner also ordered that the remaining quantity of SKO cleared by paying duty at the enhanced rate was appropriate. The said order of the Commissioner is impugned before us. 2. Shri K.K. Banerjee, ld. advocate appearing for the appellant submits that the issue required to be decided in the present appeal is as to whether the provisions of Section 15(l)(b) of the Customs Act are applicable to the facts of the instant case, where the goods already stands cleared from the customs charge, though they continue to remain in the warehouse in terms of the provisions of Section 49 of the Act. It is the contention of the appellant that the ex-bond bill of entry filed by them was duly assessed by the customs officers and the duty paid accordingly at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rage of the goods in a public warehouse or in a private warehouse, in case the same cannot be cleared within a reasonable time and such goods are not deemed to be warehoused goods for the purposes of the Customs Act. 2.4 Shri Banerjee relies upon the Orissa High Court's decision in the case of Orissa Cement Ltd v. Supdt. of Central Excise - 1992 (61) E.L.T. 256 and upon the, Tribunal's decision in the case of Hindusthan Zinc Ltd. - 1990 (49) E.L.T. 419. 3. Countering the arguments Shri A.K. Chattopadhyay, ld. JDR appearing for the Revenue argued that the rate of duty as envisaged by the provisions of Section 15(1)(b) of the Act has been rightly applied by the adjudicating authority inasmuch as in respect of warehoused goods, the rate of duty prevailing on the actual date of removal of the goods from the warehouse has to be applied. He submits that the above issue is well settled by the various judgments of the Hon'ble Supreme and the various High Courts. In support of his submissions he draws the attention of the Bench to the following decisions :- (i) 1996 (87) E.L.T. A133( S.C.) (ii) 1999 (113) E.L.T. A183 (S.C.) (iii) 1979 (4) E.L.T. (J 241) (S.C.) (iv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted to be cleared by the customs officers. In the instant case not only the full duty stood paid by the appellants, but the customs officers also permitted clearance of the same as is evident from the endorsement made at the back of the bill of entries. As such the goods cannot be held to be any longer 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. It is seen that thereafter the appellants had been clearing the goods from the said storage tank No. 1, as and when required and the said storage tank was also considered to be their godown by their jurisdictional Central Excise authorities, when they issued them a dealers registration certificate. The above developments makes one thing clear that the said storage tank was not considered as a warehouse from the customs angle, but was being considered as a godown or a storing place by the central excise officers. 4.1 We find that the Tribunal's order in the case of Hindusthan Zinc Ltd. - 1990 (49) E.L.T. 419 (T) covers the appellants' case. It was held in that case that where duty on the warehou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be paid by the importer has been paid and an out of charge has been passed by the customs, nothing more remains to be paid by the importer. In this view, the question of actual date of removal and the consequent applicability of provision of Section 15(1)(b) becomes irrelevant. 4.3 To the same effect is the decision of the Orissa High Court in the case of Orissa Cement Ltd. Para 12 of the Hon'ble High Court's order is being reproduced below for better appreciation :- 12. The positive assertion of the petitioners in this case is that the goods in question after reaching the port at Paradeep were duly entered by presenting the bill of entry for home consumption under Section 46 and the appropriate customs authority cleared the same for home consumption under section 47, much prior to the subsequent notification of the Govt. of India dated 28th November, 1986, and this assertion of the petitioners has not been denied, inasmuch as no counter-affidavit has been filed. The argument of the ld. Standing Counsel for the Union Govt., however, is based upon the provision contained in Section 15 of the Act. Undoubtedly, Section 15(1)(b) stipulates that the rate of duty and tariff v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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