ALLIED FIBRES LTD. Vs. COMMISSIONER OF CUSTOMS (IMPORT)

JUDGEMENT

(1.) BRIEF facts of the case are that the appellant imported eight consignments of plant and machinery relating to acrylic fibre/polymerization/extrusion during October 1994 to September, 1995. The said goods covered by six Bills of Entry were cleared and kept in a Bonded Warehouse while the goods covered by two other Bills of Entry were in Docks area. Later on intelligence was received that the appellants are required to pay to the supplier in addition to the invoice value of the said plant and machinery, certain amounts relating to the technical knowhow fee. Based upon the said intelligence the matter was investigated and a Show Cause Notice dated 24.3.1998 was issued. It was also found that the goods were still in the Bonded Warehouse in spite of the fact that the period of bonding has expired and the appellant has not asked for extension of the bonding period. It appears that the appellants were parallelly trying to set up a 100% Export Oriented Unit and in that context they got permission but the goods lying the Bonded Warehouse were never shifted to the approved 100% EOU. The above mentioned Show Cause Notice was adjudicated by the Commissioner who dropped the Show Cause Notice on the consideration that the goods are meant for 100% EOU and the warehousing period for 100% EOU is yet to be over. It was also noted that though the amount for technical knowhow fee is required to be paid no such remittance was made so far. Against the said order, the Revenue filed appeal before this Tribunal. This Tribunal vide order No. 614/WZB/2004/C -III dated 30.7.2004 set aside the order and remanded the matter back to the Commissioner for de novo adjudication with the following direction:

(2.) CONSIDERING the grounds taken and finding that the entire import was not effected and ordered & promoted and hearing the DR, the appellants opting not to remain present, in spite of notice for the hearing, it is held:

(3.) THE learned advocate for the appellant, at the outset, stated that he is not pressing on the valuation issue. His main contention was that the appellant has relinquished the title as per letter dated 14.3.2006 and as per the proviso to Section 68 of the Customs Act, 1962 the owner of any warehoused goods may at any time before an order for clearance of goods for home consumption has been made in respect of such goods can relinquish the title to the goods. Since they have relinquished the title of the goods on 14.3.2006 and it is not under dispute that the goods have not been cleared for home consumption, the relinquishment of the goods is in order and as per the said proviso they are not liable to pay any duty. In support of his contention, the learned advocate extensively quoted from this Tribunal's decision in the case of Essar Oils Ltd vs CC reported in : 2005 (183) ELT 481 (Tri -Mum). The learned advocate contended that in this case also the goods were in the warehouse and the warehousing period got over and the Tribunal took a view that the appellants are entitled to clear the goods against the EPGC licence. The learned advocate also submitted that the said judgment of the Tribunal discusses in detail why the Hon'ble Supreme Court's decision in the case of Kesoram Rayon vs Collector reported in : 1996 (86) ELT 464 (SC) is not applicable as the issue before the Hon'ble Supreme Court was relating to the relevant date for determining the rate of duty applicable. The learned advocate further argued that the Board issued Circular No. dated 14.1.2003 wherein they have specifically stated that in case an importer makes a request for permission to reexport the goods under Section 69 of the Customs Act such a request may be allowed even if permitted period for bonding has expired and the demand notice has been issued. The learned advocate contended that the same logic can be applicable for relinquishing the title of the goods. The learned advocate also quoted this Tribunal's decision in the case of RPG Cables Ltd vs CC (Imports), Bombay reported in : 2007 -TIOL -431 -CESTAT -MUM dated 1.3.2007 to support this contention. The learned advocate submitted that in this case this Tribunal has taken a view that the importer is entitled to relinquish even after expiry of warehousing period as no order for clearance of the goods for home consumption has been passed. The learned advocate for the appellant argued that the situation in the present case is precisely the same.