2008 Supreme(SC) 160

2008(2) Supreme 20
Supreme Court of india
(From CEGAT)
Ashok Bhan, Dalveer Bhandari & P. Sathasivam, JJ.
Commissioner of Customs, Calcutta & Another — Petitioner
versus
Biecco Lawrie Ltd. — Respondent
Appeal (civil) 2018-2019 of 2002
Decided on : 01-02-2008

important point
Once goods are cleared for home consumption, the duty payable would be on the date on which the Bill of Entry in respect of such goods is presented, under Section 46 and provisions of section 15(1) would not apply.

Headnote:(a)Customs Act, 1962 – Section 15(1)(b) – The Bill of Entry for home consumption having been presented in the prescribed form much prior to the coming into force of the amended provisions providing for enhanced rate of duty – Moreover, requirements of Section 68 have been fulfilled – Therefore provisions of section 15(1)(b) do not apply to the instant case. (Para 14)

       (b)Customs Act, 1962 – Section 15(1)(b) – Section 15(1) provides for the rate of duty and tariff valuation applicable to any ‘imported goods’ – The term ‘imported goods’ as defined in Section 2(25) of the Act means any goods brought into India from a place outside India – But it does not include goods, which have been cleared for home consumption – In view of the imported goods in the present case having been cleared for home consumption they ceased to be imported goods and the provisions of Section 15(1)(b)could not be applicable. (Para 15)

       (1989) 4 SCC 21; AIR 1991 SC 1931; (1995) Supp (3) SCC 223; 1993 Suppl.(3) SCC 453; (1999) 6 SCC 117 – Relied upon.

       (c)Customs Act, 1962 – Section 15(1)(b) – Where the goods are cleared for home consumption under Section 46, the duty payable would be as on the date the goods were cleared for home consumption - Instantly not only the full duty stood paid by the respondent, but the Customs Officer had also permitted clearance of the same – As such, the goods cannot be held to be the warehoused goods. (Para 20)

       (d)Customs Act, 1962 – Section 68 – Where duty on the warehoused goods is paid and out of charge order for home consumption is made by the proper officer in compliance of the provisions of Section 68, the goods removed in smaller lots have to be treated as cleared for home consumption. (Para 20)

       (e)Customs Act, 1962 – Section 15(1)(a) – Section 15(1)(a) provides that in the case of goods entered for home consumption under Section 46, the duty leviable would be as on the date on which the bill of entry in respect of such goods is presented – Instantly the bill of entry was presented by the respondent on 20th of May, 1998 and 28th of May, 1998 and full duty was paid – Once goods are cleared for home consumption, the duty payable would be on the date on which the Bill of Entry in respect of such goods is presented, under Section 46. (Para 21)

       Facts of the case:

       1.Respondent-assessee imported 5273.156 M.T. of Superior Kerosene Oil on 15th of May, 1998. At that time, the duty payable on importation of SKO was only the countervailing duty of 10% ad valorem.

       2.On 20th May, 1998, respondent filed Ex bond bill of Entry (to get them de-bonded) for home consumption for a quantity of 5140 M.T. The full amount of duty was paid thereon amounting to Rs.35,75,836/-.

       3.The respondent had obtained a registration certificate from the concerned Central Excise Authorities under Rule 174 of the Central Excise Rules in order to sell SKO to dealers/customers.

       5.Respondent, thereafter, started lifting goods from the storage tank from time to time in accordance with the requirements of its customers. During the period 28th of May, 1998 to 1st of June, 1998, the respondent lifted a quantity of 463.31 M.T. of SKO from the storage tank.

       6.After the Budget for the year 1998-99, in which Basic Customs Duty and Special Customs Duty was levied on SKO @ 30% and 2% ad valorem respectively, the Customs Authority withheld the clearance of SKO from the said tank.

       7.The respondent deposited under protest an amount of Rs.24,48,822/- towards Basic and Special Customs Duty on 1000 M.T. of SKO. The respondent made a further deposit under protest of Rs.12,78,116/- towards Basic and Special Customs Duty on the quantity of SKO lifted between 2nd of June, 1998 and 6th of June, 1998.

       8.A show-cause notice was issued by the appellant to the respondent for charging the enhanced rate of duty. The respondent deposited a further sum of Rs. 62,63,000/- on 3rd of August, 1998 under protest Basic and Special Customs Duty towards balance quantity of the said material lying in the storage of IBP.

       9. The Commissioner of Customs, Calcutta vide his order dated 5th of November, 1998 confirmed the assessment as detailed in the show-cause notice and also imposed a penalty of Rs.5,000/- upon the respondent.

       10.The Tribunal accepted the respondent’s appeal and set aside the order of the Commissioner of Customs. In terms of the orders passed by the Tribunal, a sum of Rs.99,89,938/- which was deposited under protest by the respondent, was refunded to it.

       11.Respondent, thereafter, filed an application before the Customs Authorities seeking payment of interest in terms of Section 27A of the Act on the aforesaid amount for the period during which the said sums were lying deposited with the appellant.

       12.As the appellant had, in the meanwhile, filed an appeal in Supreme Court, it vide communication dated 15th of January, 2004 informed the respondent that the claim cannot be considered due to pendency of the matter in Supreme Court.

       Findings of the Court :

       Goods having been cleared for home consumption before coming into force of amended provisions, section 15(1)(b) will not be applicable.

       Result : Appeals dismissed.