ASIAN PEROXIDES LTD. Vs. COMMISSIONER OF CUSTOMS, GUNTUR

JUDGEMENT

(1.) THESE 3 (three) stay applications are filed by the applicants for waiver of pre -deposit of duty amounting to Rs. 2,08,78,750/ - and equivalent penalty under Section 114A on the appellants apart from penalty of Rs. 1 lakh each on the Managing Director and the Executive Director respectively.

(2.) HEARD both sides.

(3.) SHRI G. Shivadass, learned Advocate appearing for the applicants submitted that the appellants are holders of Customs Private Bonded Warehouse Licence and they are engaged in the manufacture and export of Hydrogen Peroxide and Sodium Perborate. They imported a DG set on 28 -7 -97 after obtaining due permission from the concerned authorities. The DG set was transferred from the Port to the appellants EOU unit under a Transit Bond bearing No. 8717 dated 19 -8 -97 and the said DG set was deposited in the adjacent land (about 300 metres away) belonging to the appellants due to want of space in the EOU. In that circumstances, the Department has demanded duty on the ground that the imported goods were not deposited in the Warehouse, whereas they have been cleared to a place outside the EOU premises. Accordingly the duty was demanded. The Counsel also submitted that since the party had filed an application for declaring the place as a Warehousing Station and the same was pending before the Jurisdictional Authority, there was no justification on raising the duty demand. Furthermore, he referred to the letter issued by the Superintendent, wherein it was clearly stated that no warehousing certificate has been issued bv the Jurisdictional Officer. He contended that since warehousing certificate was not issued, demand suffers from want of jurisdiction since the Commissioner, Guntur has no jurisdiction to issue notice under Section 28 of the Customs Act. Referring to the letter dated 20 -8 -99 issued by the Deputy Commissioner wherein it was clearly mentioned that the transfer bond was closed after receipt of a re -warehousing certificate issued by the jurisdictional authorities, the demand under Section 28 is barred by limitation. He submitted that strong prima facie case is in favour of the party.