JUDGMENT :

ARAVIND KUMAR, J.

1. This appeal is admitted to consider the following substantial questions of law:

“(i) Whether the Hon’ble Tribunal was justified in entertaining an appeal against the Chief Commissioner’s letter under Section 129A of the Act which mandates appeal against the Order of Commissioner /Commissioner (Appeals)?

(ii) Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that even though the duty was confirmed by adjudication process, the same is payable only when goods are cleared for home consumption, considering the provisions of section 72 of the Customs Act, 1962?

(iii) Whether in the facts and circumstances of the case and law, the Tribunal was justified in holding that in terms of the board circular 03/2003-Cus dated 14/1/2003, the Respondent was entitled to re-export of the goods without payment of duty and consequently also entitled for extension of warehousing period?

(iv) Whether in the facts and circumstances of the case and law, the Tribunal was justified in entertaining and allowing the appeal which is against its own Order dated 25.11.2002 that had attained finality and thus reviewing their own order.”

BRIEF BACKGROUND OF THE CASE:

2. Respondent is a public limited company engaged in a commercial production of Viscose Filament yarn i.e. Rayon Yarn. In the year 1995-96, respondent imported plant and machineries – equipment under Open General Licence (OGL) from Japan, Germany and Korea, after executing 21 bonds amounting to Rs.18,01,31,442/- and initially it was stored at Bombay and later on shifted to the private bonded warehouse at Surat. On expiry of the warehousing period, respondent sought for extension for six months on the ground of it being unable to clear the imported plants and machineries – equipments due to financial crunch. Later on four extensions were sought for which came to be granted upto 31.12.1997. When the 6th extension was sought for from 01.01.1998 upto six months i.e. 30.06.1998, same was rejected and so also 6th, 7th, 8th, 9th and 10th extensions sought for. It was the stand of the respondent that there was no reply in respect of extensions sought for from 6th extension onwards till the end.

3. On account of the equipments in the bonded warehouse not having been cleared after the expiry of the permitted extension warehousing period, the appellant was issued show cause notices, initially 16 show cause notices resulting in 16 Orders in Original (For short ‘OIO’) came to be passed on 30.03.2001 which became the subject-matter of appeals which came to be adjudicated by the appellate authority and a common order dated 15.01.2001 came to be passed and rejected the same. Further, challenge to the same before the Tribunal – CESTAT, Mumbai, also ended in its dismissal on 25.01.2002. Simultaneously, in respect of remaining goods, five show cause notices came to be issued on 27.11.2001 which resulted in OIO dated 28.04.2013 being passed and appeal filed against the same was also dismissed vide order dated 12.12.2003 and appeal filed before the CESTAT was allowed in part by order dated 26.05.2004 by reducing the pre-deposit and directed the Commissioner (Appeals) to decide the appeals on merits and on account of there being no compliance, the order of Commissioner became final. Thus, the customs duty of 688.06 Lakhs was outstanding from the appellant as per the orders of the authorities which had attained finality.

4. The request of the appellant to transfer the equipments namely bonded plant and machinery lying in private bonded warehouse to inside factory premises at Surat was also rejected on the ground of show cause notice issued having already been adjudicated. Subsequently, the request which was renewed by the respondent was considered and permission granted and accordingly the plant and machinery/ equipment came to be shifted inside the factory during 23-26.10.2007, which was duly acknowledged by the department on 29.10.2007. However, the