1. The appellants have challenged the validity of the Order-in-Appeal No. 4017/88-BCH, dated 31-10-1988 passed by the Collector of Customs (Appeals), Bombay, who has confirmed the Order-in Original No. 125/87, dated 31-12-1987.
2. The facts of the case, briefly stated, are that the appellants imported 2,72,155 M.T. of PVC Compound falling under Heading 39.01 of the First Schedule to the Customs Tarff Act, 1975. The goods were warehoused under bond No. T-3333, dated 6-11-1984 in terms of Section 72 of the Customs Act, 1962 (hereinafter referred to as "the Act", for brevity's sake) and deposited on 15-11-1984 in a public bonded warehouse of the Central Warehousing Corporation at Chikalthana, New Aurangabad. The initial warehousing period was three months and the period was extended by the appropriate authority upto 31-12-1985. In the letter, dated 18-10-1985 extending the warehousing period upto 31-12-1985, the Central Board of Excise & Customs informed the appellants that no further extension would be considered after 31-12-1985. The appellants did not clear the goods within the extended period from the warehouse. They addressed another letter dated 6-11-1985 seeking extension of the warehousing period for a further period of one year on the ground that the demand for gramophone records which would be manufactured from the goods imported by them, had gone down in the market. In the said letter, they informed the Board that they had cleared the goods to the extent of 4.536 MT. The appellants addressed another registered letter on 14-4-1986 and applied in the prescribed form for extension of bond period for a period of three years from 1-1-1986 to 31-12-1988. The appellants were not granted any extension of bond period expressly by a letter by the Board in response to their representation. They had cleared on 18-3-1987 goods to an extent of 4.536 MT after paying duty at the rates prevailing on that date as prescribed under Section 15(1)(b) of the Customs Act i.e. at the rate of Rs. 15,000/- per MT and the duty worked out to Rs. 68,0407- by utilising the exemption as provided under Notification No.88/87-Cus., dated 1-3-1987. They also paid an interest of Rs. 17,2477- calculated at the rate of 12% per annum.
3. The Superintendent of Central Excise by his letter dated 15-6-1987, called upon the appellants to pay a sum of Rs. 67,837.26 P. being duty allegedly short paid on the said clearance. It was stated in the said letter that as per the Ministry of Finance, Department of Revenue, CBEC letter dated 17-3-1987, they were not entitled to benefit of the said notification as the said clearances had been made after the expiry of the extended period of the said bond No. T-3333. The appellants sought for a copy of the said Ministry's letter to prepare their reply but the same was not furnished to them. However, by a notice dated 2-9-1987, the Superintendent called upon them to explain as to why the differential amount of Customs duty of Rs. 67,836.26 P. should not be recovered from them as the goods had not been cleared within the extended period of the said bond and hence under Section 72(1) of the Customs Act, the exemption claimed by them under the said notification, was not available to them. It was stated in the show cause notice that basic duty ought to have been paid by the appellants at the rate of 150% ad valorem being the rate of duty prevalent on the expiry of the said bond i.e. 31-12-1988.
4. The appellants replied to the show cause notice on 28-9-1987 and submitted inter alia that the said clearance was in conformity with the provisions of Section 15(1)(b) of the Customs Act and that the said recovery proceedings were illegal and were to be dropped. However, the Asstt. Collector by his impugned order dated 31-12-1987, confirmed the demand on the ground that since the said goods had been cleared after the expiry of the permitted warehousing period under Section 72 of the Act, they were liable to pay duty at the rate prevailing on the date of expiry of the said bond. They filed their appeal before the Collector of Customs which was also not accepted and hence this appeal.
5. The appellants in this appeal have submitted that the Revenue has erroneously restricted the ambit of Section 15 of the Act. They have contended that the goods had been cleared by them from the warehouse and the rate of duty should be under Clause (b)(i) of Section 15(b)(1) of the Act. It is their contention that Section 15(1)(b) of the Act lays down that the rate of duty shall be the rate in force in the case of goods cleared from a warehouse under Section 68 for home consumption to be as on the date on which the goods were actually removed from the warehouse. They have contended that there is no provision governing the removal of warehoused goods for home consumption after the expiry of warehousing period, therefore, the said goods must be deemed to have been cleared under the provisions of Section 68 even though the warehousing period had expired and therefore, the conditions of Section 15(1)(b) should have been deemed to have been complied in the present case. Section 72 neither expressly nor impliedly refers to the determination of the rate of duty. In the circumstances, they have stated that the Revenue has erred in determining the rate of duty under Section 72 of the Act instead of determining it under Section 15 of the Act.
6. They have further contended that on a true and proper construction, the said Section 72(1)(b) merely confers a power on the proper officer to demand and recover duty on goods stored in a warehouse where the permitted warehousing period has expired. They have stated that it is manifest from the taxing scheme under the said Act that the rate of duty on warehoused goods can only be ascertained from the date of their clearance. There is no deeming provision under Section 72 fixing the last day of bond period to be the date of the clearance of warehoused goods. As no demand has been raised by the proper officer under Section 72 of the Act in the present case on the expiry of the bond period on 31-12-1985, therefore, it has to be presumed that Section 72 has not been invoked nor the procedure laid down under that Section has been followed in the present case. In view of the fact of the proper officer not resorting to Section 72(1)(b) of the Act to demand the duty, then chargeable on account of expiry of the warehousing period alongwith the penalties rather than interest and other charges payable in respect of the said goods, therefore, it has to be presumed that the proper officer has considered the goods to be warehoused goods till they were removed and duty paid thereon on the date of its removal at the rate prevalent then. The appellants submitted that they have paid the rate as prevalent on the date of removal of goods from the warehouse as per Section 15(1)(b) of the Act and the procedure adopted by the Department to collect the duty at the time of removal is the correct procedure.
The subsequent show cause notice demanding duty under Section 72(1) (b) of the Act considering the fact that the warehousing period had expired on 31-12-1985 and the rate should be as on the date of expiry, is not sustainable in law.
"unfortunately the demands in this case have been issued after the clearance of the goods from the warehouse. However, it does not take away the right of department in working out the correct rate of duty and which is that prevailing on the date of expiry of the warehousing period. Sub-section (2) provides that if the demand is not honoured the goods can be disposed of by the Government. The Govt. thus acquires a limited ownership in the goods after the warehousing period has expired and if the importer fails to pay up the demand raised under Sub-section (1), Government acquires a right in the goods only to the extent of recovering the duty, rent, interest and penalty. In such cases, the duty demanded would have been the duty on the date of completion of warehousing period on 31-12-1985. After this date, the goods will not be deemed to be warehoused though they may be kept in warehouse. If the warehousing period is not extended by the proper authority i.e. CBEC in this case, the Department acquires a limited right in the goods to the extent of recovery of duty, interest etc. as above".
In view of the position stated above, the rate of duty applicable in this case was that prevailing on 31-12-1985.
8. Shri Pochkhanawala, learned Advocate appearing for Mulla & Mulla & Craigie Blunt & Caroe for the appellants contended in this case that the Revenue having remained silent and not replying to their two representations dated 6-11-1985 and 14-4-1986 seeking further extension of bond period for three years from 1-1-1986 to 31-12-1988, it has to be presumed that the authorities had considered the goods to be warehoused goods. The subsequent conduct of the authorities in not demanding duty as per Section 72(1) (b) of the Act clearly tantamounted to the fact that the Department had not considered the goods as not warehoused goods but had all along been treating the goods to be warehoused goods. In the circumstances, the appellants paid duty under Section 15(1) (b) on the date of removal of goods from the warehouse, the rate of duty prevalent on that date should be levied. The procedure adopted by the Department in clubbing the interest as well as duty in the instant case is a valid procedure and the subsequent change of stand by the Department is not correct and not valid in the eye of law.
Alternately, he submitted that the date of notice being 2-9-1987 and the payment of duty having been effected on 18-3-1987, since there is no allegation of suppression or fraud, the claim for short levy will be time-barred. He clarified that if going by the allegation in the show cause notice that the date of payment should have been on the expiry of date of bond period i.e. 31-12-1985, then the duty should have been demanded within 6 months from that date. As no duty has been demanded as on that date, the show cause notice issued thereafter on 2-9-1987 shall be barred by time. He submitted that Section 28 referred to "relevant date" and not the date of payment.
9. Shri Pochkhanawala relied on the Bombay High Court judgment in the case of Sunil Jugalkishore Gupta v. Union of India and Ors. [1988 (36) ELT 75 (Bom.)] in support of the contention that the Board's power of granting extension of the warehousing period had not come to an end since they had not communicated any decision either allowing or refusing extension. He also relied on the judgment of the Supreme Court in Orient Paper Mills Ltd. v. Union of India [1978 (2) ELT (J 345)] laying down that quasi-judicial authorities should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by superior officers however highly placed they might be. He also referred to certain other decisions which will be referred to at the appropriate stage.
10. Shri M. Jayaraman, SDR, submitted that the Board by their letter had made it very clear that no further extension of the time would be granted to the appellants after the expiry of the extended period of warehousing i.e. upto 31-12-1985. The D.R. admitted that the Board's letter was not made available to the appellants by the Assistant Collector of Central Excise, Aurangabad by his letter dated 9-12-1985.
He submitted that the goods lose the character of warehoused goods on the expiry of the extended period of warehousing i.e. 31-12-1985. There is no provision to consider the goods to be deemed warehoused goods.
Therefore, in the circumstances, the duty has to be only as on the date on which warehousing period has expired and in this case, the duty should be as on 31-12-1985 when the warehousing period expired. He submitted that Section 15(1)(b) will apply only if the warehoused period had been extended and goods remained within that extended period. He submitted that the show cause notice was not barred by time.
The show cause notice has been issued within six months from the date of payment of the duty by the appellants and it has to be considered as short levied. Shri Jayaraman, SDR, relied on the decision of this Tribunal in Kesoram Rayon v. Collector of Customs -1989 (44) ELT 37 - laying down that the rate of duty applicable to goods cleared from a warehouse after the expiry of the warehousing period, under an order passed by the Asstt. Collector in terms of Section 72 of the Act, would be the rate of duty in force on the date of filing of the into bond bill of entry.
11. In reply, Shri Pochkhanawala, Advocate, submitted that the Department had not resorted to any steps to recover the duty after the expiry of bond period on 31-12-1985 upto the date of removal of the goods i.e. 18-3-1987. Thereby from such a conduct, it has to be presumed that the authorities had considered the goods to be warehoused goods and the fact that the warehouse also issued a certificate on 31-12-1986 certifying that 550 packs of PVC compounds (raw materials) stored by them in warehouse had been entered in bond register, clearly indicates that the goods were warehoused goods till they were removed by them. The learned Advocate had sought for time to produce the said letter of the warehouse and time was granted and by Misc. Application, the same was produced on a subsequent date of hearing. He further stated that there is no ruling directly on this point from any Court.
12. We have considered the submissions of both sides and perused the records.
13. The question for determination in the present case is whether, on the facts and in the circumstances of the case, the applicable rate of duty is to be determined with reference to the date of expiry of the warehousing period as contended by the Revenue or with reference to the date of actual removal of the goods on their clearance from the warehouse as contended by the appellant.
14. Section 15 of the Customs Act, 1962 provides inter alia that the rate of duty and tariff valuation, if any, applicable to any imported goods cleared from a warehouse under Section 68, shall be the rate and valuation in force on the date on which the goods are actually removed from the warehouse. Section 68 of the Act provides that the importer of any warehoused goods may clear them for home consumption if - (a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed form; (b) the import duty leviable on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for home consumption has been made by the proper officer.
Reading the two sections together, it is clear that the applicable rate of duty to warehoused goods shall be the rate in force on the date on which the importer actually removes the goods from the warehouse after complying with the requirements set out in Section 68. This is the obvious position in respect of goods cleared from the warehouse before the expiry of the warehousing period, original or extended. Difficulty arises in the case of goods which are actually removed from the warehouse after the expiry of the warehousing period. In the present case, the warehousing period which was initially for a period of three months, was extended upto 31-12-1985. The goods were cleared on 18-3-1987. The question boils down to whether the clearance of goods in such circumstances would amount to clearance of warehoused goods as envisaged in Section 68 and clearance of goods from warehouse as envisaged in Section 15 of the Act.
2(43) "Warehouse" means a public warehouse appointed under Section 57 or a private warehouse licenced under Section 58".
16. In the present case, admittedly, the goods were deposited in a public warehouse appointed under Section 57 of the Act. That they were warehoused goods till the expiry of the extended warehousing period on 31-12-1985 is not a matter of doubt. The question is whether after the expiry of the said period on 31-12-1985 the goods continued to be "warehoused goods" as defined in Section 2(44) of the Act. The definition only speaks of the deposit of the goods in a warehouse, not their removal. Logically, therefore, goods deposited in a warehouse and not removed from it should continue to be "warehoused goods" within the meaning of Section 2(44) of the Act.
Now, if we look at Section 15(1)(b), it would appear that since the goods in the present instance were cleared from the warehouse under Section 68, the rate of duty applicable would be that as on the date on which the goods were actually removed from the warehouse. Turning to Section 68, we find that it talks of clearance of "warehoused goods" subject to the importer complying with the conditions laid down therein. In the present instance, it is seen from the record that a bill of entry for home consumption was presented in the prescribed form, the import duty leviable on the goods together with interest payable had been paid and an order for clearance of the goods for home consumption was made by the proper officer. The dispute is what was the duty actually leviable - was it the one in force on the date of expiry of the warehousing period or the one in force on the date of actual removal of the goods from the warehouse? 17. To a query from the Bench, it was submitted by both sides that there is no decision of the Tribunal, a High Court or the Supreme Court directly on the point which has arisen for consideration in the present case.
18. Section 61 provides that any 'warehoused goods" may be left in the warehouse in which they are deposited till the expiry of three months or one year depending on the nature of the goods, as specified in that section. It also provides that this period of one year may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months and by the Board for such further time as it may deem fit in the case of goods which are not likely to deteriorate. In the present instance, the Board, on application made by the importer, had extended the initial period by a further period upto 31-12-1985. The Assistant Collector had, by his letter, dated 9-12-1985, made it known to the importer that they were required to clear the goods within the said extended period. It appears that the importers had approached the Board for further extension of the warehousing period and the Board had not replied to their representation. However, the fact that the Board had not replied to their representation would not, in my opinion, lead to the conclusion that, by implication, the warehousing period must be deemed to have been extended till the Board's order either allowing the extension asked for or denying it was communicated to the importer. Section 61(2) reads thus :- "Where any warehoused goods remain in a warehouse beyond the period of one year or three months specified in clause (a) or clause (b) of Sub-section (1) by reason of the extension of the aforesaid period or otherwise, interest at such rate, not exceeding eighteen per cent per annum as is for the time being fixed by the Board, shall be payable on the amount of duty on the warehoused goods, for the period from the expiry of the period of one year or, as the case may be, three months, till the date of the clearance of the goods from the warehouse.
Provided that the Board may, if it considers it necessary so to do in the public interest, waive, by special order and under circumstances of an exceptional nature to be specified in such order, the whole or part of any interest payable under this sub-section in respect of any warehoused goods." A plain reading of the above provision shows that it envisages a situation where warehoused goods continue to remain in the warehouse beyond the permissible period of three months or one year, as the case may be, by reason of the extension of the said period or otherwise, and provides for payment of interest on the amount of duty on the goods from the expiry of the bond period till the date of clearance of the goods from the warehouse. "Otherwise" here could be read, in my opinion, to mean also refusal of extension. Thus, whether extension is given or not, payment of interest is attracted on the expiry of the period of 3 months or 1 year. It follows that in a case where extension is refused or has not been granted, the goods continue to be "warehoused goods" "till the date of clearance of the goods from the warehouse". If this be so, the applicable rate of duty will be that in force on the date of actual removal of the goods from the warehouse in terms of Section 68 of the Act.
19. Section 72 of the Act talks of goods improperly removed from warehouse, etc. The relevant portion reads thus :- (b) Where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under Section 61 to remain in a warehouse: the proper officer may demand, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest, and other charges payable in respect of such goods." Sub-section (2) is not relevant in the present case and is not reproduced. The above provision authorises the proper officer to demand and casts an obligation on the owner of the goods to pay the full amount of duty chargeable on any "warehoused goods" which have not been removed from the warehouse at the expiry of the period during which such goods are permitted under Section 61 to remain in the warehouse.
In Section 72, there is no mention about the date with reference to which the applicable rate of duty is to be determined in the case of goods in respect of which the proper officer is authorised to demand duty because of the goods not having been removed from the warehouse on the expiry of the warehousing period.
20. Thus the position boils down to this : we are left with only Section 15(1)(b) of the Act to ascertain the date with reference to which the applicable rate of duty is to be determined. In this view of the matter, the date on which the goods are actually removed from the warehouse, even though such removal may be after the expiry of the warehousing period, would seem to be the date with reference to which the applicable rate is to be ascertained.
21. While the Revenue contends that the relevant date would be the date of expiry of the warehousing period, the appellant contends that it is the date of clearance or actual removal of the goods from the warehouse.
22. In support of his submission, the Learned Counsel for the appellant has placed reliance on para 10 of the Supreme Court's judgment in Chowgule & Co. Pvt. Ltd. and Anr. v. Union of India and Ors. -1987 (28) ELT 39 (SC). The facts and the question for consideration before the Supreme Court in that case were different from those in the present case and we do not see the direct relevance of this judgment to the present case. However, there are some observations of the Supreme Court which are of relevance. In the Chowgule & Co. 's case, a vessel was imported for the purpose of loading iron ore, transporting it to bulk carriers berthed in mid-stream and unloading the ore on to the latter in view of the inability of the bulk carriers to enter the port because of draught restrictions. The question for consideration was whether the vessel was "goods" brought into India for home consumption. An allied question was whether the vessel was an "ocean going vessel" (see para 11). While dealing with these questions, the Supreme Court analysed the scheme of the relevant provisions of the Customs Act including Section "It is undisputed and indeed it is indisputable that Section 46(1) is a prelude to the levy of duty or a first step in that direction.
It must, therefore, follow as a necessary sequitur that vessels, aircrafts and vehicles are goods for the purpose of Section 46(1).
Any other interpretation may lead to most anomalous results. Under Section 15 of the Customs Act, the rate of duty and tariff valuation in the case of goods entered for home consumption under Section 46 shall be as on the date when the bill of entry is presented, in the case of goods cleared from a warehouse under Section 68 as on the date on which the goods are actually removed from the warehouse and in the case of any other goods as on the date of payment of duty.
Goods which are entered for home consumption under Section 46 and goods which are warehoused are naturally goods which are openly imported into India without concealment. The expression "other goods" mentioned in Section 15(c) is obviously meant to cover other imported goods such as goods imported clandestinely and goods which have otherwise escaped duty." Though the judgment is not directly relevant, it shows that warehoused goods would not attract the rate of duty in force on the date of payment of duty as provided in Section 15(1)(c) of the Act. Such goods would, therefore, attract duty at the rate in force on the date of their actual removal from the warehouse in terms of Section 15(1)(b).
23. The next decision on which the Learned Counsel for the appellants placed reliance is that of the Tribunal in Anil Rubbers Mills v.Collector of Customs -1990 (46) ELT 450 (Tri.). In this case, a consignment of industrial nylon yarn imported by the appellants was detained by the customs authorities pending certain verification and the consignment was allowed to be deposited in a warehouse. The goods had been entered for home consumption under Section 46 of the Act and were allowed to be deposited in the warehouse under Section 49 as they could not be cleared within a reasonable time due to the enquiries being undertaken by the Department. Thus, it was not a case of goods having been "warehoused" as provided for in Chapter IX of the Act.
Therefore, this decision also, in my view, has no application to the present case.
24. The next contention of the Counsel was that Section 72 had been improperly invoked by the Department in the show cause notice, dated 2-9-1987 (page 36-39 of the paper book), the argument being that this section deals with, as the heading shows, goods improperly removed from a warehouse. The invocation of the section was improper also because the appellants' application for further extension of the warehousing period was pending before the Board. Therefore, there was no impropriety in the continued storage of the goods in the warehouse and the goods were not sought to be improperly removed. While it is true that the heading of the section refers to goods improperly removed from a warehouse etc., what is relevant is not the heading but the substantive provisions. The substantive provision of Section 72(1)(b) which has been earlier referred to deals with "warehoused goods" not removed from a warehouse at the expiration of the warehousing period and lays down how such goods should be dealt with by the proper officer. On the facts and in the circumstances of the case, it is clear that the goods were not improperly removed from the warehouse. But that would not mean that the provisions of Section 72(1) (b) had no application.
25. The Learned Counsel also referred to the judgment of the Bombay High Court in Sunil Jugalkishore Gupta v. Union of India and Ors. -1988 (36) ELT 75 (Bom.), wherein the High Court observed that there was nothing in Section 61 to indicate that the application for extension of the warehousing period must be made before the expiry of the warehousing period intially permitted. The Court also observed that while it was true that after the expiry of the warehousing period the authorities were at liberty to take coercive steps to recover the withheld customs duty and other charges, it would appear that unless the authorities have taken recourse to coercive measures they are under an obligation to consider the application for extension of the warehousing period despite the same having been preferred after the expiry of the warehousing period initially permitted. The Learned Counsel submitted that since the Board's authority to extend the warehousing period in the present instance had not come to an end and the Board had not disposed of their application, Section 72 could not have been invoked. While it is true that the appellants had applied for extension of the warehousing period and that too before the expiry of the period granted upto 31-12-1985 and the Board had not communicated any decision on the application, the Board had, as conveyed by the lower authorities to the appellants, put the appellants on notice that no request for extension of the warehousing period beyond 31-12-1985 would be entertained. Against this background, it cannot be said that the invoking of Section 72(1)(b) of the Act was improper. In any event, this point is not of much significance since, on the facts and in the circumstances of this case, I am inclined to take the view that the goods continued to be "warehoused goods" till the date of their actual removal from the warehouse.
26. A submission was made by the Counsel that the show cause notice and adjudication order was based on the Board's direction and as such they were not maintainable. While the Superintendent's initial letter of 15-6-1987 did refer to the Board's letter to the effect that the appellants were not entitled for availment of the exemption granted under Customs Notification No. 88/87, dated 1-3-1987 since the goods had been cleared after the expiry of the extended period of warehousing, a reading of the show cause notice dated 2-9-1987 and the order of adjudication passed by the Asstt. Collector shows that they were not based on Board's instruction. The Asstt. Collector has given his own reasoning as to why, in his view, the goods were not entitled to the said benefit. It is, therefore, difficult to fault the adjudication order on the basis of the objection raised by the Counsel.
27. Finally, the Counsel made an alternative submission that the show cause notice, dated 2-9-1987 was barred by limitation having been issued after the expiry of more than 6 months from the date of expiry of the warehousing period, namely, 31-12-1985. This contention, to my mind, is devoid of substance since the relevant date for determination of the question of limitation under Section 28(1) of the Act is the date of payment of the duty which, in the instant case, was 18-3-1987 and, therefore, the show cause notice was in time.
28. The Learned Departmental Representative, in his reply, submitted that on the date of removal of the goods they had ceased to be "warehoused goods". As brought out earlier, since the goods continued to remain in the warehouse notwithstanding the expiry of the warehousing period, they must be deemed to be goods stored in the warehouse, in other words, "warehoused goods". The Departmental Representative's contention has no force.
29. The learned Departmental Representative has placed reliance on the Tribunal's decision in Kesoram Rayon v. Collector of Customs -1989 (44) ELT 37. In that case, it has been stated in para 8 of the order that the goods were not cleared from the warehouse under Section 68 of the Customs Act. The goods were removed on the basis of the Assistant Collector's order dated 25-6-1985 by which he ordered that the appellants' bonded warehouse should be treated as delicenced from the date on which the goods stored therein were cleared in the manner set out in his order. The Tribunal further noted that no ex-bond Bill of Entry for home consumption was filed by the importer and no order for clearance for home consumption was made by the proper officer. The conditions laid down in Section 68 of the Act were not fulfilled by the importer and the goods were not cleared under Section 68. It was in these circumstances that it was held that after the expiry of the warehousing period the goods ceased to be "warehoused goods". It was further held that since the removal of goods was under an order passed by the Assistant Collector under Section 72 of the Act, the rate of duty applicable to the goods would be the rate of duty in force on the date of filing of the into-bond Bill of Entry as provided in Section 15(1)(a) of the Act read with the proviso to Section 15(1) and 46. The facts of the present case are distinguishable in that the clearance of the goods in question was effected on a Bill of Entry for home consumption presented in the prescribed form, on payment of the duty and other charges leviable on the goods and on an order being passed by the proper officer. It cannot be said, therefore, that the clearance was not effected under Section 68. Hence, the decision in Kesoram Rayon's case (supra), to our mind, is not applicable.
30. The learned Departmental Representative also placed reliance on the Tribunal's decision in Indian Farmers Fertilizers Co-op. Ltd. v.Collector of Central Excise -1989 (41) ELT 474 (Tri.) This case dealt inter alia with the limitation for demand of duty in terms of Central Excise Rule 196 in respect of goods not accounted for. The Tribunal held that when the demand was made under Rule 196 there was no warrant to import the limitation laid down in Section 11A of the Central Excises & Salt Act in respect of such demand. This decision has, in my opinion, no application whatsoever to the present case for the reason that Rule 196 figures under Chapter X of the Central Excise Rules and not under Chapter VII which deals with warehousing of goods under the Central Excise Law. The purpose of citing this decision by the learned Departmental Representative was to show that for raising a demand under Section 72 of the Customs Act, the limitation imposed by Section 28 is not relevant. In the present instance, the demand for duty has been raised, as we have seen earlier, within six months from the date of payment of duty and as such the question posed by the Departmental Representative is academic and need not be answered.
31. In the light of the foregoing discussion, we are of the view that the goods in the present case attracted duty at the rate in force on the date of their actual removal from the warehouse. In this view of the matter the appeal succeeds and is allowed with consequential relief to the appellants.