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TMI Blog1986 (3) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and Others, 1985 (22) E.L.T. 644 might have a bearing on the issue under consideration by the Bench, both sides stated that they had not had an opportunity to study the judgment and, therefore, they did not make any submission in this behalf. 3. The facts of the case, very briefly stated, are that the appellant imported acrylic fibre prior to 4-10-1978 and warehoused the goods in accordance with the provisions of the Customs Act, 1962. The goods were cleared after 4-10-1978 from the warehouse in terms of Section 68 of the Customs Act. On 4-10-1978, the President of India promulgated the Additional Duties of Excise (Textiles and Textile Articles) Ordinance in terms of which an additional duty of excise (in addition to the duty of excise leviable in terms of the First Schedule to the Central Excises and Salt Act, 1944) was imposed on certain specified articles. Acrylic fibre was one of the articles which attracted such additional duty of excise. At the time of removal of the acrylic fibre from the warehouse, it appears that the Customs Authorities assessed the goods to additional duty of customs (popularly known as countervailing duty of customs) equivalent to not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their actual removal from the warehouse. Construing the amended Section 15 of the Customs Act, the Court observed that it was the clear requirement of Clause (b) of Sub-section (1) of Section 15 of the Customs Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods were actually removed from the warehouse. The Court negatived the argument that the requirement of the amended Section 15 should have been ignored simply because the goods were imported before it came into force or that the bill of lading and bill of entry were lodged before that date. 7. In the case of Apar Private Limited, the Bombay High Court had occasion to discuss the aforesaid judgment of the Supreme Court in the Prakash Cotton Mills case. The Bombay High Court noted that the Prakash Cotton Mills case was not one of goods which were totally exempt from customs duty (as was the case of Apar Private Limited case before the Bombay High Court). They were chargeable to duty under Section 12 and only the rate of duty at which they were chargeable was in question. On the date the goods we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Act would not be chargeable. 9. Thus, it may be seen that there are conflicting decisions of the High Courts on the issue.. But in so far as the issue before us is concerned, we think, this conflict in decisions does not and need not have a bearing on the conclusion, If we apply the ratio of the Delhi and Madras High Court decisions referred to earlier, the obvious conclusion is that the goods in the appeal before us rightly attracted additional duty of customs equivalent to the additional duty of excise in terms of the Additional Duties of Excise (Textiles and Textile Articles) Ordinance (later. Act) of 1978, on the date of their clearance from the bonded warehouse in terms of Section 68 of the Customs Act. 10. Let us now see whether any different conclusion emerges by applying the ratio of the Bombay High Court decision in the Apar Private Limited case to the appeal before us. Section 3 (1) of the Customs Tariff Act, 1975, read with the Explanation to that Section, constitutes the authority for levy of additional duty of customs on imported goods equal to the duty of excise leviable on indigenous goods. The duty of excise referred to in the section has been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 15 (1) (b) of the Customs Act. 12. In the above view of the matter, the action of the customs authorities in charging additional duty of customs on the subject goods at the increased quantum consequent on the levy of additional duty of excise on indigenous goods under the Additional Duties of Excise (Textiles and Textile Articles) Ordinance (Act) of 1978 was correct. The impugned order is confirmed and the appeal is rejected. per : M. Gouri Shankar Murthy, Member (J).- 13. I regret my inability to agree with the order proposed by my learned Brother. 14(a) Admittedly, the levy in terms of the Additional Duties of Excise (Textiles and Textiles Articles) Ordinance (hereinafter, the ordinance) was not in force on the date of import - the exigible event. (Section 12 of the Customs Act, 1962 - hereinafter, the Act for short). Once the goods are leviable to duty, the assessment or quantification of the duty payable is in terms of the rate of duty and tariff valuation in force on the date when a bill of entry is filed under Section 46 or goods cleared from a warehouse in terms of section 68 amongst other specified events. [Section 15 of the Act]. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 472 [M/s. Shri Ramalinga Mills Pvt. v. Assistant Collector of Customs) on an erroneous application of the ratio of the decision of the Supreme Court in AIR 1958 S.C. 341 (Empress Mills Nagpur v. Municipal Committee, Wardha). Since "import" and "imported goods" had been defined in the Act, unlike the C.P. and Berar Municipalities Act in the case of the Empress Mills or the Sea Customs Act in AIR 1963 S.C. 1760 (In re. the Seas Customs Act), there is not warrant for applying the ratio of the said decisions to cases under the Act. Nor is it correct to say that a construction contrary to the ratio of the aforesaid Supreme Court cases would result in a levy on goods in transit through "India". This is to lose sight of the provisions of Chapter VIII of the Act altogether (paras 30, 34, 35, 39, 50, 52, 53, 54 and 57 of the report). [Incidentally, it may not be amiss to recall that our ratio in 1983 (11 and 12) E.L.T. 1938 decided on 10-5-1983 (Shri Pargan Singh v. Collector of Customs and Central Excise) was identical on the issue of "import" and the applicability of the decision of the Hon'ble Supreme Court in the Empress Mills case to a construction of the said word as defined in the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India], still, unless the supplementary levy is,' in fact, imposed by statute, it is not attracted. Where the taxable event, namely, the import occurs before the imposition of the supplementary levy (as distinguished from a mere change in the existing rate of duty) the goods cannot be subjected to the levy, just because it partakes of the character of Customs duty, unless such supplementary levy was retrospective. What is of significance is that it is a new supple - mentary levy imposed after the import and not merely a variation in the applicable rate of duty existing on the day the import occurred. While it is true that in the case of Prakash Cotton Mills, [AIR 1979 S.C. 675=1979 E.L.T. 241] it was observed that Section 15 of the Act was the relevant provision for purposes of assessment, that by itself does not dispense with a levy in the first instance. That was a case of a change in the rates of exchange and duty applicable in the computation of the assessable value and not of a levy after the import. Indisputably, Section 15 of the Act is relevant for the determination of the applicable rate of duty as well as exchange but not for the determination of the existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Central Government in relation to the duty so chargeable, are assessed to duty, there shall be levied and collected a duty of excise equal to ten per cent of the total amount so chargeable on such goods. (2) The duties of excise referred to in Section 1 shall be in addition to duties of excise chargeable on such goods under the Central Excises and Salt Act, 1944 (1 of 1944) or any other law for the time being in force.... " It was this additional levy of excise that was sought to be recovered from the importer as additional duty in terms of Section 3 of the Indian Tariff Act, 1975. (iii) Section 3 of the Indian Tariff Act, 1975 is a study in contrast. Although the heading of the section spoke of a levy of additional duty, there is nothing in the provision itself that spoke of a levy and collection of an additional duty. It says the goods are liable to an additional duty and not that there shall be levied and collected an additional duty of customs. Further, sub-section (2) of the Ordinance makes a clear distinction between the duties of excise levied under the Central Excises and Salt Act, 1944 and the duties of excise levied under sub-section 3(1) itself. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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