MISSING WAREHOUSED GOODS INELIGIBLE FOR EOU BENEFITS?
CESTAT BANGALORE BENCH vide final order no.1439 & 1440/09 dt. 01.12.09 in re: AMERICAN POWER CONVERSION (INDIA) PVT LTD. vs CCEX BANGALORE observed as follows:-
QUOTE: We find that the impugned goods were assessed at the time of import for warehousing in terms of Notification Nos. 96/03 or 52/03 -Cus and 22/2003-CE. This assessment ic claimed to have been supported by the essentiality certificate issued by the licensing authority. We find that this assessment cannot be revised by the authorities denying the exemption benefit without following due process of law. The revenue has no case that the rate of duty or tariff description of the warehoued goods had changed to warrant a revision of assessment. In any case question of assessment arises only when the goods are removed from the warehouse. In the instant case the impugned goods were not held to be imporperly removed for the reason that warehousing period had expired and proper officer had not granted exension of warehousing period. Moreover the goods involved in Order No.23/08 were found by the original authoirty to be prototype / technical sample. Such goods undisputedly are entitled to exemption…………
The order no. 24/08 is passed on the basis that APC could not show certain warehoused goods for verification before the officers. Demand is on the basis that the impugned goods had been removed from the warehouse, clandestinely. The lower authorities did not rely on any evidence for finding of such removal from the warehouse. The assessee all along maintained that the impugned goods were available in stock in the warehouse. We find that the impugned demand of duty cannot be sustained under Section 72(a) of the Act without evidence of their removal as envisaged in the said section. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_11439_1440]
CESTAT ORDERS
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