EASTER INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) THE appellants had paid the duty on 200 MTs of Mono Ethylene Glycol (MEG) after filing bill of entry No. F -603/2002, dt. 26 -2 -90 and obtaining out of charge order. However, they could clear only 80.135 MTs prior to 15 -3 -90. However, during the Budget on 19 -3 -90, the rate of Customs duty was increased and the department insisted on reassessment and finally the goods were cleared on payment of differential duty with interest. The appellant also filed refund claim and both refund claim and issue of re -assessment are the subject matter of the dispute.

(2.) HEARD both sides. Learned advocate appearing on behalf of the appellant submits that after 15 -3 -90, balance quantity could not be cleared since the department did not allow them to move the balance quantity and after Budget on 19 -3 -90, department was insisting to pay higher rate of duty and appellants were disputing it, there was substantial delay and finally appellants had to pay enhance rate of duty with interest. He submits that in view of the fact that out of charge order was already been given on the bill of entry, it cannot be said that the goods remained in ware -house. He also relies on the decision of the Honble Supreme Court in case of CC, Calcutta v. Biecco Lawrie Ltd., 2008 (223) E.L.T. 3 (S.C.). In this judgment, it was held that once out of charge order is passed, goods cannot be held to be warehoused goods. Learned SDR Shri S.R. Prasad on behalf of the Revenue submits that the decision of Honble Supreme Court is not applicable to the present case since in that case, the appellant had made an application under Section 49 of the Customs Act and obtained permission to keep the goods in warehouse after payment of duty which is not the case here.

(3.) WE have considered the submissions from both sides. We find that the decision of Honble Supreme Court cited by learned advocate on behalf of the appellant, is relevant and for better appreciation, we reproduce Para 20 of the judgment of the Honble Supreme Court.