Bisco Limited Vs Commissioner of Customs and Central Excise (Supreme Court of India)
Supreme Court held that provisions of section 71 of the Customs Act doesn’t apply when goods were not warehoused inside the notified public bonded warehouse but were unloaded outside the notified area but within factory premises and kept under a shed on permission granted by Superintended.
Facts- Appellant imported in all 595 cases of machinery parts which were required to be warehoused in the notified public bonded warehouse. Based on information, the officials of the respondent had searched the industrial premises of the appellant including the notified public bonded warehouse. In the course of the search, the stock lying within the notified public bonded warehouse were verified. On such verification, only 304 cases were found lying inside the warehouse; 264 cases were found outside the warehouse but within the industrial/factory premises of the appellant; remaining 27 cases were not found either inside the warehouse or outside the warehouse within the industrial/factory premises.
Accordingly, a show cause notice was issued to the appellant as well as to the warehouse keeper by the Collector (now the Commissioner). Commissioner by his adjudication order did not accept the reply of the appellant and confirmed the demand and interest.
The matter was taken up by the Commissioner afresh on remand. By a detailed order dated 28.04.2005, the Commissioner gave various directions. It was against this order that the related appeal was filed by the appellant before the CESTAT. By the impugned order dated 30.04.2009, CESTAT dismissed the appeal. Hence the present appeal.
Conclusion- Held that the decision of the respondent to invoke Section 71 and thereafter levy interest on the goods covered by the 264 cases under Section 28AB of the Customs Act was not justified. Since the imported goods covered by the 264 cases were never warehoused inside the notified public bonded warehouse but were unloaded outside the notified area but within the factory premises of the appellant and kept under a shed on permission granted by the Superintendent which permission was neither cancelled nor revoked, question of warehousing the goods covered by the 264 cases within the notified public bonded warehouse did not arise.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
Heard learned counsel for the parties.
2. This is a statutory appeal under Section 130E of the Customs Act, 1962 (briefly the ‘Customs Act’ hereinafter) against the final order dated 30.04.2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short ‘CESTAT’ hereinafter) in Customs Appeal No.441 of 2005 dismissing the appeal filed by the appellant against the order dated 28.04.2005 passed by the Commissioner of Customs and Central Excise, Indore (for short ‘the Commissioner’ hereinafter).
2.1 By the aforesaid order dated 28.04.2005, the Commissioner had confirmed the duty demand of Rs.3,99,255.00 in respect of 27 cases not found in the warehouse and imposed penalty of Rs. 1 lakh on the appellant under Section 112 of the Customs Act. That apart, the appellant was directed to pay interest on the duty confirmed in terms of Section 28AB of the Customs Act from the date of enforcement of the said section till the date of actual payment of duty. The Commissioner had also confiscated 264 cases of imported goods valued at Rs.48,79,776.00 seized from within the factory premises of the appellant but outside the approved warehouse under Section 111 of the Customs Act. However, the confiscated goods were permitted to be redeemed on payment of fine of Rs. 2 lakhs. Thirty days’ time was granted to the appellant to exercise the option for redeeming the goods. Further, the Commissioner had confirmed customs duty amounting to Rs.39,03,82 1.00 in terms of Section 71 read with the proviso to Section 28A of the Customs Act. The appellant was also required to pay interest amounting to Rs. 18,88,425.00 on the customs duty confirmed on the 264 packages from the date of warehousing till the date of detection of the shortage in the warehouse; in addition, appellant was also required to pay interest on the duty confirmed in terms of Section 28AB of the Customs Act from the date of enforcement of the said section till the date of actual payment of duty confirmed on the 264 cases.
3. Appellant before us is M/s Bhanu Iron and Steel Company Limited, Plot No. 801, Sector III, Industrial Estate, Pithampur, District Dhar in the State of Madhya Pradesh (‘BISCO’ for short).
4. This appeal has a chequered history. Before finally landing in this Court, the appellant had gone through several rounds of appeal and remand. For a proper perspective, it would be apposite to briefly narrate the factual trajectory of the case.
5. Appellant had imported second hand steel mill machinery and parts thereof under Project Import Facility covered by Chapter Heading No.98.0 1 of the Schedule to the Customs Tariff Act, 1975.
6. A warehouse within the precincts of the industrial/factory premises of the appellant was notified as a public bonded warehouse on management basis with M/s Central Warehousing Corporation as warehouse keeper by the then Collector of Customs and Central Excise, Indore vide the notification dated 03.05.1989 for storage of the imported second hand steel mill machinery and parts thereof without payment of customs duty. According to the respondent, the appellant had imported in all 595 cases of machinery parts which were required to be warehoused in the notified public bonded warehouse. The breakup of the 595 cases of the machinery parts as provided by the respondent is as under:
