TMI Blog1981 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ders is that Section 12 of the Customs Act, 1962 is the charging section under the Customs Act. The said section lays down that "duties of customs shall be levied at such rates as may be specified under the Indian Tariff Act, 1934, (now C.T.A. 1975) or any other law for the time being in force, on goods imported into, or exported from India". The appellate authority has, therefore, held that the date of actual importation of the goods is crucial for the purpose of levy of customs duty on the goods. In other words, if customs duty which included additional duty was not chargeable on the date of importation of the goods, the said duty cannot be charged with reference to the rate prevailing on a subsequent date by virtue of the provisions of section 15 of the Customs Act, which provides the statutory date for the purpose of determination of the rate of duty applicable to any imported goods. The Central Government were tentatively of the view that the aforesaid orders of the Appellate Collector of Customs were not correct in law and the reasons for the said tentative view had been incorporated in the show cause notice. In their reply to the show cause notice and in the personal hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods from payment of counter veiling duty was rescinded by Notification No. 63-Cus., dated 1-3-1979. The Custom House, therefore, in terms of the provisions of Section 15(1)(b) charged countervailing duty on the goods with reference to the date of their actual removal from the warehouse. 6. The common thread that runs through these 3 cases as stated above is the question whether the crucial date for the purpose of levy of customs duty on the goods should be the date on which the goods have been actually imported into India or the date as is statutorily determined under Section 15(1) of the Customs Act. 7. In the personal hearing granted to all the 3 importers on 15-12-1980, Shri Soli J. Sorabji, Senior Advocate, appearing on behalf of M/s. Bayer (lndia) Ltd. Bombay, referred to the definition of the term 'import' as provided in Section 2(23) of the Customs Act. The said sub-section (23) of Section 2 defines the term 'import' as bringing into India from a place outside India. Sub-section (27) of Section 2 defines 'India' as including territorial waters of India. The Senior Advocate contended that it has to be found out in the first instance whether duty was chargeable when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption is as if it is contained in the parent Act itself". Like observations have been made by the Court in Orient Weaving Mills' case. By citing all these cases the Senior Advocate wanted to establish that exemption notification is part of the statute and once the goods are exempted at the point of importation, at a subsequent date the same would not be leviable to duty by operation of Section 15(1). 9. Smt. Pappu further contended that the show cause notice issued by the Government in the case of her clients was hit by limitation inasmuch as the same was issued after expiry of 6 months from the date of the order-in-appeal. According to her, the subject case would fall in the category of non-levy inasmuch as the appellate authority held in his order that duty was not chargeable on the goods. For the cases of non-levy time-limit has been clearly prescribed in Section 131(5) and as such the show cause notice issued to the importers by the Government was clearly time barred. In support of her contention she has cited the Delhi High Court's decision in Associated Cement Co. case (decided on 17-4-1980). In the case under reference the Delhi High Court has observed that the time li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs presented the Bill of Entry on 13-3-1979 and made a claim for exemption of the whole of duty on the ground that on the date of importation basic customs duty was not chargeable on Palmolein in terms of exemption Notification No. 129-Customs, dated 1-7-1977. The Government observe that on facts the case under reference corresponds to the case of M/s Jai Hind Oil Mills Ltd. The case under reference was decided on 4-8-1980 and thus is the latest of the orders passed by the Court on the question of leviability of duty with reference to the date of importation or the date as specified in Section 15. The Madras High Court observed that the definition of 'import' as contained in Section 2(23), states that 'import' with its grammatical variations and cognate expressions, means bringing into India from a place outside India. "Bringing into India" obviously would mean the clearance of the goods and Section 15 puts the matter beyond doubt. The Madras High Court, therefore, held that the relevant date is the date of presentation of the bill o entry and not the date of actual importation of the goods. As regards the notification exempting the goods from payment of duty, the Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us refund cannot be treated as short-levy or for that matter non-levy either. As the term erroneous refund does not appear under Section 131(5) of the Customs Act, the time limit prescribed for other two categories of cases viz. non-levy and short levy, cannot be imposed on the case of erroneous refund. In any case it is understood that no refund has so far been made in this case on the basis of the appellate decision. In view of the above, the Government are clearly of the view that the subject case is not hit by limitation of any sort. The Government, therefore, have no hesitation to set aside the order-in-appeal pertaining to the case of M/s. Jai Hind Oil Mills Ltd. and restore the original orders. 15. As regards the other two cases the Government observe that the ratio of the Bombay High Court's decision in the case of M/s. Sylvania and Laxman and M/s. Synthetics and Chemicals Ltd. cannot be applied to the cases of M/s. Vikas Woollen Mills, Delhi and M/s. Bayer (India) Ltd., Bombay. In these two cases, duty was not completely exempted on the date of importation. It is observed that the basic customs and auxiliary duties were chargeable on the goods and were so charged without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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