PHOENIX INTERNATIONAL LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal is directed against the Order -in -Appeal No. C. Cus. 223/2002, dated 31 -5 -2002 by which the Commissioner (Appeals) has rejected the appeal filed by M/s. Phoenix International Ltd. on the ground that since the appellants are not able to produce any letter or permission from the department extending the warehousing period duly permitted by the Commissioner/Chief Commissioner who are only competent to do so under Section 61 of the Customs Act.

(2.) Appearing on behalf of the appellants ld. Counsel Shri R. Ganeshan submitted that they have applied for the permission to the department for extending the bond period and the Deputy Commissioner of Customs (Bonds) vide Letter No. S4/16/96 -Bonds, dated 1741 -99 informed them that their request for extension of bond period for ex -bond clearance of goods under EPCG Licence scheme can be considered subject to their taking an indemnity bond for a total sum of the duty foregone and interest on duty foregone and also a Bank Guarantee of 25% on the above total sum. The Dy. Commissioner (Bonds) wanted them to confirm in writing whether they want to comply the above conditions in order to consider their request for extension of bond period. Since the appellants were not in a position to provide Bank Guarantee of 25% of the total sum, they had requested to allow them to file Corporate Guarantee. To this request the Dy. Commissioner of Customs (Bonds) vide his letter F. No. S4/337/99 -Bonds, dated 31 -1 -2000 (at page 16 of the paper book) had reminded them to furnish the authorisation/resolution passed by their Board of Directors to give Corporate Croup Guarantee instead of the Bank Guarantee. In pursuance to this direction they have submitted the Board's resolution under common seal of the Company and had also earlier submitted Corporate Guarantee on 19th January, 2000. The appellants had also given a certificate and had also furnished list of Companies under the group of M/s. Phoenix International Limited which were registered under the Companies Act, 1956. In the list it was also certified that majority of the Directors in any one company also form the majority in the other Company. Ld. Counsel further submits that the extension of bond period has not been decided by the Commissioner so far and when application is pending, though submitted belatedly, such application has to be considered and decided. He relied on the judgment rendered by the Bangalore Bench in the case of Pradeep Ullal v. CC, Bangalore reported in 2001 (133) E.L.T. 428 (Tri - Bangalore) wherein it has been held that the Commissioner or Chief Commissioner were under obligation to Consider the applications for extension, despite belatedly made and the confirmation of the demand by Dy. Commissioner was 'pre -mature', since it has been made before the extension application was considered as provided under the law. The Bangalore Bench had therefore set aside the demands. Ld. Counsel prays that in view of this situation and the judgment rendered by the co -ordinate Bench at Bangalore (supra), the impugned order may be set aside. He also prays for re -export of the goods although on a query from the Bench he confirmed that the payment for the goods has been made to the suppliers. This request for reexport is also required to be dealt with as per law.

(3.) Appearing on behalf of the Revenue ld. DR Shri A. Jayachandran reiterated the departmental stand as also given a report dated 16 -1 -2004 from the Deputy Commissioner of Customs Revenue Cell (Sea).