Customs, Excise and Gold Tribunal - Mumbai
Chloride Industries Ltd. vs Commissioner Of Customs on 13 February, 1998
Equivalent citations: 1998(103)ELT402(TRI-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. The appellant imported a consignment of plastic under an advance licence issued to it and subsequently deposited the goods in a bonded warehouse. When it cleared the goods from the warehouse, the period of validity of the licence had lapsed. In the order impugned in the appeal, the Additional Collector has said that the benefit of Notification No. 159/90 to the goods cannot be extended to the goods for the reason that the importer did not possess a valid advance licence when the goods were cleared out of Customs charge. Hence this appeal.
2. Advocate for the appellant contends that when the goods were imported, they were covered by a licence, and relies on the observation of the Additional Collector to this effect. Therefore, he says it is not relevant whether, when the goods were cleared from the Customs finally, the advance licence was valid or not.
3. The Departmental Representative contends that in terms of Clause (b) to the explanation below 1 to the notification, a valid advance licence must be produced at the time of clearance from the Customs. This meant that the advance licence should be valid when the goods are cleared from the Customs charge. Since this was not the case, the benefit of the notification cannot be granted.
4. The notification, in Para 1, exempts from duty "goods imported into India against an advance licence...." Explanation says that the term "Goods imported against advance licence includes (emphasis ours) goods imported under any licence including OGL, for the time being in force, for which at the time of clearance form Customs control a valid advance licence is produced." This is in line with Para 351 of the Hand Book of the Procedures of Import Export Policy 1990-93 which provided that the benefit of the Duty Exemption Entitlement Certificate Scheme and hence the notification would be available to goods which, if they were not imported against advance licence would be covered by an advance licence issued when they were cleared out of bond. The Additional Collector says that the importer had "the valid advance licence at the time of arrival of goods at Bombay". The correctness of this observation has not been questioned by the Department. If this is the case, the fact that the appellant chose to keep the goods in a bonded warehouse subsequently would not disentitle it to the benefit of importation under the advance licence. The fact that the advance licence subsequently lapsed and was not in force when the goods were cleared from the bond would not affect to the fact that the importation was made under an advance licence which was valid. Therefore, the condition prescribed in the Explanation (v) to the notification would not apply to the facts of this case. It is evident that, by a deeming provision, goods which were not imported under an advance licence but some other licence, but for which another licence has been issued before they were cleared from Customs charge, have been includible in the deposition of goods imported under an advance licence. The object is undoubtedly to ensure that the benefit of the notification is not denied to goods merely received, when they were imported, and they were not covered by an advance licence but which the Government extended shall get the benefit of the DEEC Scheme, and so far what it subsequently issued an advance licence. These conditions would not apply in view of this specific finding of the Additional Collector that the import was made under an advance licence.
6. It is strange that the importer chose to bond the goods when no duty would be payable on them, which would be the case, if they were importer under an advance licence. We however cannot discount the specific finding of the Additional Collector that the importer had a valid advance import licence when the goods were cleared from the bond. We have therefore no alternative but to allow the appeal.
Appeal allowed. Impugned order set aside.