Customs Act, 1962 – s.71 r/w. the proviso to s.28A, s.111 – The allegation of the respondent is that 264 cases were improperly or unauthorisedly removed from the notified warehouse as those were found lying outside the notified area but within the industrial/factory premises of the appellant – That apart, 27 cases were neither found inside the notified warehouse nor outside the said warehouse but within the factory premises of the appellant – In such circumstances, the respondent has justified the order dated 28.04.2005 (passed by the Commissioner),which was affirmed by the CESTAT vide order dated 30.04.2009 – Propriety:
Held: The appellant had submitted that soil outside the notified area that become very sluggish due to heavy rains – As a result, the trailers carrying the consignment could not enter the notified warehouse and appellant had requested the concerned Superintendent of Customs and Central Excise to shift the machineries to under a shed within the factory premises – The permission was granted – The permission granted by the Superintendent to the appellant to unload a portion of the cargo outside the open space which was notified as public bonded warehouse but within the factory premises of the appellant was neither cancelled nor revoked by the Superintendent or even by the Commissioner – Infact, a view can reasonably be taken that the appellant as the owner of the goods had exercised its right u/s. 64(d) which was endorsed by the Superintendent – Therefore, it would not be correct to say that the 264 cases found outside the notified warehouse but within the factory premises of the appellant were improperly or unauthorisedly removed from the notified public bonded warehouse – Also, the period of warehousing had not expired and continued to remain operational in terms of the proviso to s.61 of the Customs Act – The decision of the respondent to invoke s.71 and thereafter levy interest on the goods covered by the 264 cases u/s. 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 – However, there is no explanation on the part of the appellant qua the missing 27 cases – Therefore, the view taken by the respondent and affirmed by the CESTAT that those 27 cases were improperly or unauthorisedly removed from the notified public bonded warehouse is correct and requires no interference. [Paras 13, 50, 51, 53, 54]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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