TMI Blog2003 (7) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... tract i.e. dated 2-11-1990, viz., centrifugal air compressor and spares, were cleared and deposited in a Custom Bonded Warehouse, after assessment of an into-bond Bill of Entry on 30-9-1991 under Tariff Heading 98.01. (b) On announcement of the new Export-Import Policy for the period 1992-97, the appellants applied for clearance of the capital goods under the EPCG scheme, which permitted import of capital goods at a concessional rate of Customs duty of 25% or 15% provided the importer undertook an export obligation equivalent to three times the CIF value of such capital goods over a four year period or four times the CIF value over a five year period respectively. DGFT amended the import licence issued on 24-9-1990 and permitted the import of capital goods under the EPCG scheme. The amendment took place on 24-9-1992. (c) The appellants, thereafter filed an ex-bond Bill of Entry on 14-10-1992, for the clearance of the capital goods kept in the Custom Bonded Warehouse under the EPCG scheme. The goods were cleared at a rate of duty at 15% under Notification No. 160/92-Cus., dated 20-4-1992. An indemnity-cum-guarantee bond, as regarded, was executed on 30-10-1992 undertaking inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the merit rate, applicable to the tariff heading under which the goods are classifiable. Hence, this appeal. 2. After hearing both sides and considering the matter, it is found :- (a) As regards the facts in issue, the Commissioner has found and recorded :- "24 ……… M/s. VBC had approached Custom House, Visakhapatnam, and a project was registered in that Custom House, under File No. S-13/104/91-AP and a release advice allowing the goods to be cleared under Project Import Regulations, 1986 was forwarded on 11-9-1991. In this release advice also, I find the same import licence No. 212674, dated 24-9-1990 figured. The importers filed a warehousing Bill of Entry No. 29158, dated 13-9-1991 i.e. immediately on receipt of the release advice from Visakhapatnam Custom House. Based on the said release advice, the Project was registered in this Custom House. As the importers presented a warehouse Bill of Entry under Project Import, the same was assessed in the Project Import Group and goods were subsequently warehoused. For the purposes of warehousing an importer can opt for assessment in a regular group of Project import group. The warehouse bill of entry was assessed under Proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere ordered for release at the request of the importers under EPCG scheme under benefit of Notfn. No. 160/92. Therefore, once the assessment having been complied with and goods were cleared for home consumption, the need for re-opening the classification on account of any exigency cannot arise. Therefore, the plea advanced by the appellants, that Custom House, Chennai vide letter F. No. S-37/187/91-Group 6, dated 15-9-1997 addressed to Visakhapatnam Custom House informing that the subject Ex-bond Bill of Entry had been finally assessed under Project Imports (i.e Heading 9801) and duties amount to Rs. 99,119/- short paid have been discharged will not assist the appellants case, since that amount was in account of short collection arising out of excess spares which were shown below the main equipment in the Bill of Entry. For this part of spares, the duty was also paid again under EPCG at concessional rate of 15%. Therefore, he did not accept the contention of the importers that the Bill of Entry had been finally assessed under Project Import and therefore, the assessments should be reverted to Project Import. (b) The Apex Court in the case of M.J. Exports Ltd. [1992 (60) E.L.T. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "7. Amendments of Warehousing Bill of Entry - ......... change in Classification - after Warehousing - In respect of warehoused article, which was at the time of assessment classifiable at a later date, owing to change in the wordings of Customs Tariff Act, 1975, under a different heading which carried a different rate of duty re-assessment of duty under such different headings of the tariff would be in order. (B.R. Letter No. 1/16/58-Cus. vide 13-5-58)" Nothing contrary to this has been shown to us. There is no case or cause to even suspect misdeclaration of the goods, there is no change required to be effected by amendments made in the Tariff. Therefore, classification of the impugned goods arrived at under Heading 98.01, by the proper officer, on assessment of the into- bond Bill of Entry filed under Section 46, cannot be altered at the time of ex-bond clearance on a Bill of Entry filed under Section 68, which may not even qualify to be a Bill of Entry under Section 2(4) of the Customs Act, 1962. The classification, once finally assessed under 9801 under Project Import in this case cannot be altered to Chapter 84, since the classification of any goods imported, as made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guarantee was enchased viz., 23-1-99 is to be considered as the date of payment of duty as held by the Tribunal in the case of K.C. Enterprises v. CC reported in 2002 (141) E.L.T. 221. The notice has been issued on 26-7-1999, which is after the expiry of 6 months. The demands as made are barred. (f) Since condition of exemption Notfn. No. 160/92 have been fulfilled on payment of duties, this is no cause to uphold the confiscation under Section 111(o) of the Customs Act, 1962. The exemption notification granted exemption from payment of Customs duties on the imported capital goods subject to export of specified products by the applicants. If exports as contemplated in the said exemption is not undertaken, then as per the exemption notification, applicants were liable to pay the duty foregone. Thus, the exemption notification itself gives two alternates to the applicants while conferring exemption, namely export the goods or pay the duty. If either one of the alternates is satisfied, then there is no violation of the conditions of the exemption notification. In the present case, the applicants have paid the duty as per the notification. Hence, there is no violation of condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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