Custom, Excise & Service Tax Tribunal
Ambuja Cement Eastern Ltd vs Commissioner Of Customs (I), Mumbai on 18 October, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. C/214/05-Mum (Arising out of Order-in-Appeal No. 94/2004 (JNCH) dated 25.11.2004 (F.No. S/49-279/2001 Bond//S/49-314/2003 Bond (JNCH)) passed by Commissioner of Customs (Appeals), JNCH, Raigad) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. Raju, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Ambuja Cement Eastern Ltd. Appellant Vs. Commissioner of Customs (I), Mumbai Respondent Appearance: Shri T. Viswanathan, Advocate, for appellant Shri M.K. Sarangi, Joint Commissioner (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Raju, Member (Technical) Date of Hearing: 18.10.2016 Date of Decision: 18.10.2016 ORDER NO Per: M.V. Ravindran
This appeal is directed against order-in-appeal No. 94/2004 (JNCH) dated 25.11.2004 (F.No. S/49-279/2001 Bond//S/49-314/2003 Bond (JNCH)).
2. The relevant facts that arise for consideration are M/s. Modi Cement Ltd. imported a consignment of roller pair assembly and filed an in-bond bill of entry dated 2.12.1988; the same was assessed and the goods were permitted to be deposited in warehouse on 26.12.1988 for a period of one year i.e. upto 25.12.1989. Subsequently, due to financial problem, the said Modi Cement Ltd. did not clear the consignment and Modi Cement Ltd. was taken over by the appellant, Ambuja Cement Eastern Ltd. with all assets and liabilities. Appellant filed ex-bond bill of entry on 19.3.2001 and sought clearance of the consignment which was allowed but subject to discharge of duty liability at the rate prevalent on 19.3.2001. Appellant contested the said findings on the ground that the goods should have been assessed at the rate which was prevalent when they were bonded. Both the lower authorities did not agree with the contentions of appellant.
3. Learned counsel would draw our attention to the factual position and submits that the relevant date for calculation of customs duty in cases of warehoused goods is the date when they are cleared. He would submit that various decisions of the Honble High Courts as well as Honble Supreme Court have held that the duty rate prevalent on the date of clearance of the goods from the warehouse has to be applied while arriving at the actual duty payable. It is his further submission that due to the circumstances under which the goods were cleared belatedly by the appellant, they had filed an application/representation before the CBEC for waiver of the interest liability, which is still not disposed of.
4. Learned departmental representative would reiterate the findings of the lower authorities and submit that the issue is now squarely settled by the Honble Supreme Court in the case of Kesoram Rayon vs. CC, Calcutta 1996 (86) ELT 464 (SC), which has been followed by this Bench in the case of Videocon Industries Pvt. Ltd. final order No. A/2825/15/CB and also in the case of Standard Inds. Ltd. vs. CC, Mumbai 2016-TIOL-772-CESTAT-MUM.
5. On careful consideration of the submissions made by both sides, it is undisputed that the goods were warehoused on 26.12.1988 and they were to be cleared on 25.12.1989 as per the order passed on the in-bond bill of entry. Whatever may be the circumstances with which the goods cannot be cleared from the bond, the duty liability which has been fastened upon the appellant is in accordance with the law as decided or settled by the apex court in the case of Kesoram Rayon (supra). Their Lordships have held that once the goods which are warehoused are not cleared within the period granted or the extension thereof, the goods are to be considered as improperly removed from the warehouse, hence demand of the duty in the case in hand is correct, as there is nothing on record to show that appellant had sought extension for removal of the goods from the warehouse and it was permitted. In the absence of any such document, we find that the confirmed demands are correct. The impugned order to that extent is upheld.
6. As regards the interest, we find that the appellant had made representation before the CBEC for waiver of the interest due to circumstances under which the goods were stuck up in the bonded warehouse and we were informed that the said representation is still pending. On specific mention of the learned counsel, we find that the interest liability will arise on the appellant only as and when the CBEC disposes the representation filed by the appellant.
7. The impugned order is upheld and the appeal is disposed of in above terms.
(Pronounced in Court) (Raju) Member (Technical) (M.V. Ravindran) Member (Judicial) tvu 1 4 C/214/05