The Board circulars issued are to be given meaningful interpretation, and the authorities cannot circumvent the circular by stating that the warehousing period has already expired.

JUDGMENT

ORDER

K.S. Jhaveri, J. —Both these appeals are arising out of the common judgment of the Tribunal therefore, both are taken up together and we disposed of by the common order.

By way of these appeals, the department has challenged the judgment and order of the Tribunal wherein the Tribunal has disposed of the appeal filed by the assessee.

2. The assessee imported the machine in the year 1996 under the Government Scheme of EPCG license which was subsequently because of the Government policy cancelled and he has applied for 100% oriented unit.

3. Counsel for the appellant Mr. Jhanwar contended that the appeal of the assessee though preferred subsequently is required to be heard first inasmuch as if the appeal is allowed then the department appeal will not have any effect inasmuch as if the goods is required to be released pursuant to the Government circular, the second appeal will become academic.

4. This Court while admitting the matter framed the following substantial questions of law :-

In DB Excise Appeal No. 22/2009

"Whether as per the facts and circumstances of the case the learned Tribunal is correct in law in vacating the seizure considering that the invocation of provisions of Section 111(j) of the Customs Act, 1962 is not justified while they have considered that the provisions of Section 72(1)(b) of the Customs Act, 1962 are rightly attracted in the case.?"

In DB Excise Appeal No. 3/2011

"Whether on the facts and in the circumstances of the case and in law the order passed by learned CESTAT was justified in demanding duty, interest, rent and other charges on 27 looms imported under Export Promotion Capital Goods Scheme which were allowed to be cleared under 100% EOU without payment of duty?"

5. The facts of the case are that the appellant had obtained EPCG licences dated 6-9-1995 and 30-1-1996 for import of second hand looms on payment of concessional rate of duty of 10% in terms of Notification No. 110/95-Cus. They imported the goods in 1996 warehoused the same in the public bonded warehouse run by C.W.C. they changed their mind on clearing the warehoused goods under EPCG licences and applied to the DGFT authority and Development Commissioner for treating the goods already imported under EPCG Scheme as goods imported under 100% EOU Scheme (The import of goods under 100% EOU scheme is fully exempt from Customs Duty). The Ministry of Industry granted permission for setting up of the 100% EOU by letter dated 7-8-1998. The Development Commissioner also gave permission vide letter dated 31-8-1998. They also applied for the cancellation of EPCG licences issued by the DGFT authority and the same were cancelled in November, 1998. A show cause notice dated 12-3-1999 was issued on the ground that the goods imported under EPCG Scheme under Notification No. 110/95-Cus. and lodged in the warehouse have not been cleared from the warehouse even after the expiry of the warehousing period and that the condition of import under EPCG was not fulfilled. The original authority confirmed the duty, besides confiscating the goods. In pursuance of the direction of the Tribunal dated 1-12-2003, the matter has been re-considered and by the impugned order, the Commissioner ordered confiscation of 27 looms valued at Rs. 5,51,37,779/- under Section 111(j) of the Customs Act, but allowed redemption on payment of fine of Rs. 50 lacs within three months from the date if the goods were redeemed appropriate duties and other charges would be payable in respect of the said goods.

6. Mr. Jhanwar has pointed out that the Commissioner in subsequent year has totally derogated the observations made by the CESTAT in its order dated 23rd January, 2003 which reads as under :

"12. We find that in the present case as per the Revenue the period was expired in 1997 but the Revenue had not taken any action in respect of these goods. It was only on the request made by the appellants vide letter dated 3-11-1998 for seeking permission to have private bonded sto