TMI Blog1995 (7) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... ertilisers. For this purpose, they imported phosphoric acid in various consignments regarding which into bonds of bills of entry were filed on 12-1-1990, 5-2-1990, 6-2-1990 and 30-1-1990. Subsequently, [they] filed five ex bonds bills of entry on 5-2-1990, 6-2-1990, 30-12-1990, 30-1-1990 and 30-1-1990 and goods were allowed to be cleared provisionally. 3. Prior to the provisional assessment, the Government issued Notification No. 236/89-Cus., dated 1-9-1989 granting partial exemption to phosphoric acid used in the manufacture of fertilisers when imported from Morocco provided the importer proved to the satisfaction of the Assistant Collector regarding the origin in accordance with the rules of origin referred to in Article 15 of the agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of the required notification prior to the final assessment. 8. Since they had satisfied all the requirements of the exemption Notification No. 236/89-Cus. before final assessment, they were entitled to the benefit thereof. 9. In this connection, he would like to point out that the notification had been issued before the rules were promulgated and, therefore, the notification must be interpreted and applied de hors the rules and strictly in accordance with the language of the notification. 10. It was also their contention that the Tribunal itself had allowed the benefit of the notification in similar situations where the benefit had not been claimed strictly at the time of importation, but subsequently and the documents had been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said annexures. The notification is dated 1-9-1989 and all the importations and the clearance of the goods are subsequent to this date. Hence, the appellant was required to satisfy the conditions of this proviso. 15. The rules of origin referred to in the above proviso were undoubtedly published subsequently under Notification No. 281/89, dated 19-12-1989, but all the ex bonds bills of entry were filed subsequent to this date and, therefore, the rules were in force at the time of assessment for the purpose of clearance. Rules 4, 5 relate to determination of origin and claim to be made at the time of importation. The wordings of Rules 4, 5 and the certificate of origin (Para 7 of the Schedule) (reproduced below) are significant. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and meant to be complied with strictly if the benefit was required to be claimed and granted. Hence, the impugned orders may be upheld. 17. We have considered the above submissions. 18. We observe that it is true that in the normal course the benefit of a notification was expected and required to be claimed at the time of importation. 19. The learned Collector (Appeals) is also basically correct in his concept about the time of importation and it appears to us that the time of importation begins when the ship enters into the territorial waters of India and continues till the goods are cleared for home consumption or otherwise under orders of the proper officer and the learned Collector is right in mentioning that the touch stone appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberal view has been taken in this regard as rightly pointed out by the learned counsel. 24. The learned D.R. has, of course, correctly pointed out that these orders are of a period prior to the issue of the relevant rules of origin. At the same time, the fundamental principles of interpretation have not changed and they require that essential distinction between what was the matter of form and what was one of substance must be kept in view as held by the Hon ble Supreme Court in the case of Mangalore Chemicals and Fertilisers Ltd. v. Deputy Commissioner reported in 1991 (55) E.L.T. 437 (SC). 25. In this particular case, another fact which is of significance is the distinction between removal and clearance . The goods can be remove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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