ORDER
Gowri Shankar, Member (Technical)
1. The appellant before us imported a consignment of butene diol and by filing appropriate bill of entry it had deposited the goods in the bonded warehouse without payment of duty in January 2002. In March, of that year, it filed a bill of entry to clear the goods from the bonded warehouse for home consumption, and claimed in that bill of entry the exemption from duty contained in notification 31/97. The exemption is only applicable if the goods are imported against an advance licence. The appellant therefore attached to the bill of entry a copy of the advance licence, which had been obtained by transfer, issued for butene diol and was though initially valid up to 18.8.2001, had been renewed and was valid till 28.2.2002.
2. The department refused to accept the licence on the ground that when it was presented for clearance of the goods from the bonded warehouse it was ceased to be valid. Notice was issued proposing disallowance of the exemption and the Commissioner passed orders denying the benefit. Hence this appeal.
3. The reasons that the Commissioner advanced for not extending the benefit of the notification are as follows. Notification 31/97 required debit to be made in an advance licence at the time of clearance. The clearance in the case of removal of goods from a bonded warehouse is their physical removal from that warehouse. The licence could not be valid on that date. The relevant date for calculating duty for the goods removed from the bonded warehouse is the physical removal of the goods as provided in Section 15(11)(b) of the Act. This stage is beyond the validity period of the licence.
4. These are the arguments that the departmental representative emphasises.
5. It is true that the notification exempts in the first paragraph “materials imported into India against an Advance Licence issued on or after 1.4.96” from the date. Therefore, there is a requirement that when the goods are imported into India, they must be covered by a valid advance licence. Without going into this, it is not necessary for us to go into whether the notification contemplated the commencement of import or the completion of the import and consider the rationale of the judgment of the Supreme Court in Garden Silk Mills v. Union of India 1999 (113) ELT 358. Even assuming that the import licence was required to be produced that the goods physical arrived in India. This requirement has been satisfied. The appellant obtained a licence by transfer on 2.1.2002. The licence at that time was valid. Therefore, on the date of shipment of the good they were covered by an advance licence. If the importer had submitted the licence then in support of the claim for exemption from duty under notification 31/97, it could not have been refused on the ground of absence of a valid advance licence. When once that facility was available, we do not see where a claim later that the goods were in bonded warehouse was removed for home consumption not entitled for exemption. It is settled law that the benefit of a notification available, even if it were not claimed at the time of clearance of the goods can be claimed later (see Simla Agencies v. CCE 1993 (67) ELT 599). We do not find any support under law in the stand taken by the Commissioner that the licence was equally be valid when the goods are cleared from the bonded ware house. The notification does not say, as he states, that the scheme required for a valid Advance Licence to be produced and debited at the time of clearance.” As we have noted, it exempts material imported into India against an advance licence. This requirement is satisfied. The relevance of the provisions of Section 15(1)(b) of the Act, provided the rate of duty applicable to goods cleared from the bonded warehouse to be one in force on the date when the goods are removed from the bonded warehouse to the facts under consideration escapes us. For the benefit of the exemption to be applied, the goods must be covered by an advance licence. However, for calculating the duty foregone, the advance licence is not necessary. The question of calculation of duty foregone under the “Advance Licence” which the Commissioner refers to does not arise at all and therefore we do not find any absence of cogent reasoning for denying the exemption.
6. The appeal is accordingly allowed and the impugned order set aside.