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 store room and to manufacture goods in bond under section 65 of the Customs Act in view of the permission granted by the Ministry of Industry to set up a 100% EOU, the Customs Authority issued the present show cause notice. We find that the circular issued by the Board dated 10-11-1999 requires meaningful interpretation. When the Board clarified that in a case where EPCG license is cancelled by DGCT as unutilized and the appellants received permission to set up a 100% EOU than the goods in question which are lying with the Customs are to be treated released subject to fulfilment of condition provided under 100% EOU scheme. When the Board clarified that in a case where EPCG license is cancelled by DGCT as unutilized and the appellants received permission to set up a 100% EOU than the goods in question which are lying with the Customs are to be treated released subject to fulfilment of condition provided under 100% EOU scheme. The authorities below cannot circumvent the Board''s circular by saying that warehousing period in respect of the goods have already expired. In these circumstances, we find that it is fit case for reconsideration in the light of the Board''s circular. Therefore, the impugned order is set aside and the matter is remanded to the adjudicating authority for deciding afresh after affording an opportunity of hearing to the appellants. The appeal is allowed by way of remand." 7. He contended that while deciding the matter, the observation made by the authority is not only desirable but also the Tribunal has ignored the observations made by the earlier authority. 8. This being the state of affairs that the goods which was imported in March, 1996 is lying in warehouse and the notification which came to be issued after the import order was passed by the assessing officer the fact of the matter is that the goods are lying with the customs authority during the pendency of this petition. 9. We have heard counsels for both the sides. 10. From the first order, the direction which has been issued to the authority was very clear that the authorities below cannot stand by the Board circular that the period of warehousing has already expired. In these circumstances, we find it to be a fit case for reconsideration in the light of Board circular. Hence, the order impugned is set aside and the matter is remanded to the adjudicating authority to decide afresh after affording opportunity of hearing to the appellant. 11. Hence, the appeal of the assessee is liable to be allowed. 12. Before that the Tribunal also observed that the Board circulars which are issued are to be given meaningful interpretation and in doing so, the Tribunal has given indirect hint to the Director of earlier authority to give the benefit of circular. 11. Hence, the appeal of the assessee is liable to be allowed. 12. Before that the Tribunal also observed that the Board circulars which are issued are to be given meaningful interpretation and in doing so, the Tribunal has given indirect hint to the Director of earlier authority to give the benefit of circular. However, Commissioner after the remand has observed as under :- "I have carefully gone through the facts of the case and submissions made in reply to the show cause notice and submissions made during the personal hearing. I find in this case that the warehousing period in respect of two consignments imported on 10-10-1995 and 20-4-1996 had expired on 23-11-1996 and on 20-4-1997 respectively. Thereafter, an extension was given upto 20-10-1997 and 23-10-1997 respectively in respect of these two lots; but the goods were still not cleared by the assessee. Finally their request for further extension was turned down by the Chief Commissioner (JZ), Customs & Central Excise Jaipur on 10-2-1998. Since the extension of warehousing period was not granted and the goods were not removed from the warehouse on the expiry of the period 23-10-1997 and 20-10-1997 upto which these goods were permitted under Section 61 of the Customs Act, 1962 to remain in the warehouse; in terms of Section 72(1)(b) such goods were treated as goods improperly removed from the warehouse. Section-111(j) provides that any dutiable or prohibited goods removed or attempted to be removed from a Customs area or from a warehouse without permission of the proper officer or contrary to the terms of such permission shall be liable to confiscation. In this case, since no extension was granted by the Chief Commissioner, after the original extended warehousing period had expired, the goods could be considered as improperly removed from the warehouse and became liable to confiscation under Section 111(j) of the Customs Act, 1962. I have gone through the Board''s Circular No. 75/99 as well as the directions contained in the Final Order dated 3-12-2003 of the CESTAT New Delhi, carefully I find that the said circular is applicable to the goods which were still under the Customs Bond in terms of Section 61 of the Customs Act, 1962. The warehousing period of the goods i.e. imported machines has already expired and the said goods are under seizure with the Department. The warehousing period of the goods i.e. imported machines has already expired and the said goods are under seizure with the Department. The instructions contained in the letter of F. No. 305/91/99-FTT, dated 10-11-1999 of the Board (Circular No. 75/99-Cus.) are not applicable in the present case. Therefore, the request of the assessee to allow these goods to be transferred to their EOU cannot be acceded to. 11. Further I find that M/s. Modern Suitings, Alwar were granted permission to set up an EOU vide LOP (Letter of Permission) No. PER 208 (1998) EOB/150/98 by the Under Secretary to the Govt. of India, Ministry of Industry, EOU Section, New Delhi, which was valid for 3 years from its date of issue. The Deputy Commissioner Central Excise Division Alwar vide his letter of C. No. VIII (16) MSL/4/95/2059, dated 4-2-2005 has informed that neither the assessee has a valid LOP nor any request from them has been received for installation of 100% EOU. The unit is also lying closed since long period. 12. In view of the above discussion and the facts of the case, I hold that M/s. Modern Suitings Ltd., Alwar are not having the status of an EOU and therefore, their case is not covered under Board''s Circular No. 75/99, dated 10-11-1999, 13. Accordingly I pass the order as follow :-" 13. In our considered opinion, when the Tribunal in first order passed has make it clear that in view of the circular if EPCG Scheme is licenced under EOU it be considered. In that view of the matter, we are of the opinion that both the authorities namely Customs Appeals and the Tribunal has seriously committed an error in not observing the order passed by the earlier authority namely Tribunal in Customs Appeals dated 23-1-2003. 14. In that view of the matter, we are of the opinion that the appellant is entitled to the benefit of circular. The same will be given to him and the goods will be released in the export 100% export oriented unit subject to the fulfilment of the condition. We made it clear that for the 1995 or 1996 imported goods, the warehousing charges will be on higher side. The same will be given to him and the goods will be released in the export 100% export oriented unit subject to the fulfilment of the condition. We made it clear that for the 1995 or 1996 imported goods, the warehousing charges will be on higher side. The Central Government will consider the same in view of the fact that the investment made by the assessee to the tune of five crores in the year 1996 and the assessee has suffered because of the tussle between the department and the assessee. In that view of the matter, if the assessee is not prepared to take the delivery of the goods, it will be open for him to request the adjudicating authority to auction the property and after administrative expenses not beyond the 1% of the total value as on today and 10% of the penalty, the balance amount will be given back to the assessee. 15. With the above observations, the appeal of the assessee is allowed and the issues are answered in favour of the assessee. 16. The appeal of the department (22/2009) stands dismissed.