TMI Blog2004 (12) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,89,374/- And deposited the same in a private Bonded Warehouse on 18-5-1999: 2. (a) The initial Warehousing period was valid till 18-5-2000 in terms of section 61(1)(b) of the Customs Act, 1962. Appellants request for extension of the Warehousing period was rejected by the department on 18-6-2001. Thereafter, three demand notices dated 18-6-2001, 25-7-2001, and 27-7-2001 were issued to them under Section 72 of the Customs Act 1962 directing to forthwith remove the said goods on payment of duty and interest. (b) In the meantime, appellant had applied for and obtained two EPCG licences bearing Nos. 0330000724, dated 27-11-2000 0330001481, dated 1-11-2001, which "specifically'' covered the goods imported by the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant claimed the benefit of the aforesaid since the goods had "remained uncleared even after expiry of the warehousing period" duty amounting to Rs. 6,02,57,006/- along with interest at the rate in force amounting to Rs. 2,44,53,523/- till 30-11-2001 and further interest at the applicable rate "at the time of clearance" as per provisions of section 72(1) (b) of the Act was required to be paid by the appellant and recovered from it. Para 7 of the notice also alleged that since the appellant had "failed to ex-bond the goods" covered under the three Bills of Entry mentioned above on payment of duty even after expiry of the warehousing period of the goods, it had rendered itself liable for a penalty under section 72 and section 117 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he warehouse would further, appear from the proposal in" the same para to apply interest at the applicable rate at the "time of clearance". This shows that the goods had not been' cleared from the Customs' merely by reason of expiry of the Warehousing period. The goods remaining deposited in Ware House without payment of import duty leviable thereon cannot be said to be "Cleared from Customs". Therefore, since duty had not been paid by the appellant and the goods continued to be 'under Customs' control they had not been cleared from the Customs; hence both the conditions stipulated in para 6.6 of the EXIM Policy stand satisfied in the present case. (b) That this case was entirely different from the case of KLJ Plastics Ltd. for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not the situation in the case in hand. (c) The lower authorities have failed to appreciate the vital difference that existed between the EXIM Policy concerning the EPCG Scheme and the DEEC Scheme. While para 7.17 of the EXIM Policy relating to DEEC Scheme conferred a discretion upon the Customs for granting the benefit of an Advance Licence issued subsequently by using the word "may", the corresponding provision of para 6.6 in the EPCG Scheme did not confer any such discretion as it employed the word "shall". (d) The lower authority had completely mis-constructed and misread the judgment of the Supreme Court in the case of Kesoram Rayon v. Commissioner of Customs, [1996 (86) E.L.T. 464 (S.C.)] = [1996 (66) ECR 2001]. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Kesoram Rayon's case. As both the EXIM Policy (Chapter 6, para 6.6) as well as Customs Notification No. 49/2000-Cus., dated 27-4-2000 specifically provide for the eventuality of an EPCG licence being issued, after an import but prior to clearance of the goods by the Customs, as is apparent from para 6.6 of the EXIM Policy and para 1 of the Notification which required EPCG licence lo be produced for debit by the proper officer of the Customs "at the time of clearance." The expression "cleared from the Customs" and "clearance" appearing in the EXIM Policy and the Notification had to be constructed as referring to either the date of out of charge order passed under section of the Notification which requires EPCG licence to be produced for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 69 of the Customs Act or an order had been issued by the Customs authorities demanding duty, interest and other charges on such goods upon expiry of the initial or extended period of warehousing. The Board had directed the Chief Commissioner to extend the period of warehousing to enable the importer to export the goods within the permitted period of Warehousing. Since the duty amount was nil, the interest thereon would also be nil as held by the Hon'ble Supreme Court in the case of Pratibha Processors v. Union of India, [1996 (88) E.L.T. 12]. It was submitted on behalf of the appellant that due to passage of time, the equipments needed to be refurbished/ repaired and for the said purpose, appellant to be permitted to export the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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