TMI Blog1981 (10) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods were assessed at the rate of 60% + 15% + 40% Countervailing Duty under Item 39.01/06 CTA read with Government of India Notification No. 192/77, dated 26-8-1977. The petitioners contended that the duty should be chargeable @ 40% + 5% + 40% Countervailing Duty as on the date of importation viz. on 21-8-1977 the Notification No. 192/Cus., dated 26-8-1977 was not in force and the rate of duty was leviable at the aforesaid rate in terms of exemption Notification No. 227-Cus., dated 2-8-1976 as it stood on that date. Accordingly, the petitioners claimed the refund of difference of duty of ₹ 41,596.38 in respect of each of the 15 consignments and all the claims were rejected on the ground that the entry inwards of the subject vessel was after the date of the notification increasing the rate of duty and therefore in terms of Section 15, the assessment already made was in order. The appeal was also rejected relying on the Supreme Court decision in M/s. Prakash Cotton Mills Pvt. Ltd. v. B. Sen others (AIR 1979 SC 675-677). 3. In this revision application, the bone of contention of the petitioners is that the Appellate Collector has fallen in error in equating the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of applicability of the rate of exchange prevailing on the date of ex-bond clearance but the Government are of the view that the said observation is pertinent in the context of the present case as well. In the case of M/s. Prakash Cotton Mills P. Ltd., excess duty became chargeable with reference to the date of ex-bond clearance in terms of the amended provisions of Section 15 of the Customs Act. The said amendment came into force after importation of the goods. But by virtue of the provisions of Section 15(1)(b) of the Customs Act, the rate of exchange prevailing on the date of ex-bond clearance was applied to the goods, notwithstanding the fact that at the time of importation of the goods, the words rate of exchange were not to be found in section 15(1) of the Customs Act, 1962 which were subsequently incorporated by way of an amendment. The above judgment of the Supreme Court was brought to the notice of the Senior Counsel at the time of personal hearing. The Senior Counsel, however, emphasised that in terms of Division Bench judgment in the matter of M/s. Sylvania Laxman v. M.M. Singh Shoure, the Court clearly pronounced that once it is held that the goods are chargeable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xported goods. Section 29 of the Act deals with arrival of vessels and aircrafts in India. This section stipulates that the person incharge of a vessel or an aircraft entering India from any place outside India shall not cause or permit the vessel or the aircraft to call or land (a) for the first time after arrival in India or (b) at any time when it is carrying passengers, cargo brought in with vessel or aircraft at any place other than a Customs Port or Customs Airport, as the case may be. Only exception has been made to this provision in relation to any vessel or aircraft which is compelled by accident or stress of weather or other unavoidable cause to call or land at a place other than the Customs Port or a customs airport subject to certain conditions expressly provided in the subsection itself. Next Section which comes for scrutiny is Section 30 of the Act which deals with delivery of import manifest or import report. In terms of this section, the person incharge of a conveyance carrying imported goods shall within 24 hours after arrival thereof at a customs station, deliver to the proper officer in the case of a vessel or an aircraft the import manifest and in the case of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subsequent rate. This argument was expressly negatived by the Supreme Court and their Lordships laid down that it was pretty clear that clause (b) of Sub-section (1) of Section 15 contemplated applicability of the rate of duty, the rate of exchange and Tariff Valuation in force on the date on which the warehoused goods were actually removed from the warehouse, after the amending Ordinance had come into force and as such the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse viz. the amended Sections 14 and 15 of the Act. The Supreme Court therefore concluded that there is no force in the argument that the requirement of the amended Section 15 should have been ignored merely because the goods were imported before the amendment came into force or that their bills of lading or bills of entry were lodged before that date. 11. At this juncture, it would be appropriate to take notice of the Division Bench judgment of the Bombay High Court which is being interpreted in a certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods which were not liable to pay duty at all when imported cannot be subjected to the duty by procedure to be adopted under section 15 for clearance. 12. The Counsel has attempted to argue that while following Sylvania Laxman judgment, no distinction should be made between the goods where the exemption is total and the goods where there is a partial exemption. The Government do not wish to improve upon the judgment which lays down a very clear proposition that in order that any goods should be made to pay duty, the primary or the basic requirement is that on the date of importation they must be chargeable to duty. The primary fact to be remembered is that if on the date of importation there was total exemption which means the entry was not there, they were not liable to any duty whatsoever on imports. Even if the operation of the notification ceased and a certain rate contemplated by the Indian Tariff Act became operative, it had no relevance to those imports for which initially there was a total exemption. By implication, once it is held that the goods were chargeable to duty on importation, the rate prevalent on the date of actual clearance will apply under Section 15(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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