BMS CHEMIE Vs. COMMR. C. EX. AND CUS.

JUDGEMENT

(1.) THE unit of the appellants is a 100% export oriented unit. They imported one of their inputs namely, N -Amyl alcohol which was received in the unit on 29 May 2000. Extension of warehousing period up to 29th November 2001 was applied for and granted. Another application for extension of warehousing period for six months from 29th of November 2001 was also applied for by the appellant on 26.11.2000 but no response was received by them. The appellants also submitted another request for extension of the warehousing period for one more year on 05 February 2003 and there was no response to this letter also. Subsequently the appellants obtained the permission of the Department and removed the goods on payment of duty by using DEPB licence. After issue of show cause notice and adjudication and appellate proceedings at the level of Assistant Commissioner and Commissioner (Appeals), it has been held that appellants are liable to pay duty at the rates applicable as 29th November 2001 with interest. Hence the present appeal.

(2.) HEARD both the sides. The learned advocate on behalf of the appellants submitted that when the applications for extension of warehousing period were pending, determination of rate of duty as on the date of completion of extended warehousing period is not correct. In support of his argument he relies upon the decision of the tribunal in Pradeep Ullal reported in , PSI data Systems Ltd reported in, 2006 (200). ELT. 612 (Tribunal -Bangalore), Macmillan India Ltd reported in . He also submitted that the decision of the Commissioner (Appeals) upholding the levy of interest is not correct due to the fact that payment of duty by debit in a DEPB licence has been held to be availment of exemption and not amounting to payment of duty. In support of this he cites the decision of the tribunal in Reliance Industries Ltd. case reported in and the decision of the Larger Bench of the Tribunal in Essar Steel Ltd. reported in . The learned SDR adopts the arguments of the Commissioner (Appeals).

(3.) IN view of the above discussions, we uphold the orders of the Commissioner (Appeals) as regards the relevant date for calculation of rate of duty and set -aside the order as regards levy of interest. Appeal is decided on these terms.