TMI Blog1980 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... oods were imported the duty chargeable under the provisions of the Customs Act read with the provisions of the Indian Tariff Act, 1934, was 60 per cent for Item No. 87. The Appellants claim that they made representations as also the Trade itself made representations to the Government of India and that resulted in the Government of India issuing an exemption notification under Section 25(1) dated 12th October, 1968, on the acid in question, wherein the duty in excess of 27 ½ per cent was exempted. In simple language, the 60 per cent duty was reduced to 27 ½ per cent. 3. After such a notification was issued, the Appellants took delivery and removed from the warehouse the goods between the period from December, 1968 to June, 1969 on the various dates. They paid duty at 27 ½ per cent under the Notification and removed the goods after presenting each time the Bill of Entry for home consumption. After this was done, the Assistant Collector of Customs issued as many as four notices dated 15th January, 1969 (2 notices), dated 6th June, 1969, and the fourth one dated 29th August, 1969. The notices were replied to and by identical orders dated 27th January, 1970, 27th February, 1970 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warehouse; (c) in the case of any other goods, on the date of payment of duty : Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards." Before us there is no dispute that the only Clause that applies to the goods of the Appellants is Clause (b) above. This Section lays down that the rate of duty as well as the rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, in the case of goods cleared from a warehouse under Section 68, on the date on which the goods are actually removed from the warehouse. It is not disputed before us that on the actual entry of these goods a bill of Entry Form Bond was presented after going through the formalities of Sections 46 and 59. After the assessment was made a proper Bond was executed and the goods were stored in the warehouse. Once that is done, "the procedure then to be followed is the one laid down in Section 68". Under this Section an importer of any warehoused goods may clear them for home-consumption i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to imported goods shall be the rate and valuation in force; and under Section 68 it shall be on the date on which the goods were actually removed from the warehouse. There is no doubt in this case that the goods arrived in the Indian Customs waters and were removed to the warehouse on 20th October, 1966. They were cleared under Section 68 only from and after December, 1968 till June of 1969. The Section clearly tells us that in such a case where the goods are cleared from a warehouse under Section 68, the date on which they were actually removed is the relevant date. December, 1968 onwards are, therefore, the relevant dates on which the goods have been actually removed. As we have pointed out earlier, indisputably the exemption operates under the Notification from and after 12th October, 1968. Prima facie, therefore, these goods are entitled to the benefit of that exemption. This is precisely what the Appellants have been claiming before the learned Single Judge and in Appeal before us. Shri Dhanuka argued us that the Notification under Section 25 being a subordinate legislation it cannot be retrospective in its effect. That proposition is not being disputed. Shri Dhanuk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rehoused, on completion of certain formalities as laid down under Section 69, the goods could be removed from the warehouse on payment of duty as on the date of removal and when that is being, the Indian Tariff Act lays down the various Items on which the duty is to be calculated. That Section also deals with the rate of exchange which is to be allowed as on a particular date. It is on this second aspect viz. the rate of exchange that the judgment of the Supreme Court was required to consider. Here we are called upon to consider the rate that is applicable. If this is so, as a substantive provision of Section 15 itself, the argument of Shri Dhanuka would create an anomalous situation that the procedure to warehouse the goods and remove them on a specific date will be rendered nugatory or will be of no help to the importer at all. That procedure which fixes a particular date sometimes works adversely to a party who may be required to pay a higher rate. It is a change and it cannot be said that a certain result will always follow in a given situation. 8. If Shri Dhanuka's arguments were to be accepted, then if the goods were actually cleared from December 1968 onwards, the rate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubber it would appear to be more rational. If merely the acid were to be imported even after the 12th October 1968 not for the manufacture of Synthetics rubber but for the manufacture of some other rubber product, it is doubtful whether any exemption under this Notification could be claimed. The emphasis is, therefore, not upon the time of import but upon the use of the material. So read, the notification would be harmonious with the provisions of Section 15. It would now mean, as we interpret the notification, that whatsoever the actual time of importation if the application for the removal is being made under Section 15(1)(b) in terms of Section 68, the relevant date for calculating the duty would be the date of actual removal. In the circumstances, we have no doubt that the rate prevalent from December, 1968 to June, 1969 would be the only rate at which the duty is to be calculated and levied so far as the disputed goods are concerned. 9. We will at once refer to the judgment of the Supreme Court, which in our view, has laid down the same proposition though in relation to the calculation of the rate of foreign exchange. In the case of M/s. Prakash Cotton Mills P. Ltd. v. B. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s juncture we must take notice of a Division Bench Judgment of this Court, which is being interpreted in a certain manner and relief being given or refused in same of the judgments made by the Learned Single Judge of this Court. Shri Dhanuka also relies upon this judgment for developing one limb of his argument. We shall briefly cite what that judgment decides and in what circumstances. By a notification dated September 3, 1966, the Government of India, Ministry of Finance, Department of Revenue and Insurance, in exercise of powers conferred by Section 25(1) of the Customs Act, 1962, granted exemption to glass tubes used in the manufacture of fluorescent lamps from customs duty leviable under the First Schedule to the Indian Tariff Act, 1934. This exemption was to continue for a specific period and was to be and inclusive of 31st March 1967. The goods in question were imported on March 29, 1967, and after the formalities of the Bill of Entry Form Bonds etc., were completed' they were warehoused. Subsequently they were cleared on June 6, 1967. On that date the Assistant Collector of Customs claimed duty saying that under the provisions of Section 15(1)(b) the actual date of clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pay any duty whatsoever on imports. Even if the operation of the Notification ceases and a certain rate contemplated by the Indian Tariff Act becomes operative, it shall have no relevance to those imports for which initially there was total exemption. 12. There may be other cases where on the date of importation the goods are liable to duty. It must mean that they are chargeable to duty. At what rate must they be actually taxed on the date of removal ? As an illustration, suppose a Notification exempts certain goods from payment of a part of duty or whereby the duty payable is reduced to 271/2 per cent. If such a Notification comes to be withdrawn or ceases to have operation on the date on which the goods are actually removed from the warehouse, what would be the effect? Should these goods pay 271/2% or 60%, which is the normal tariff rate. We have to answer in favour of determination of the rate of 60 per cent the reason being that the goods were not totally exempt. Once they are chargeable to duty on importation the rate being irrelevant the rate prevalent on the date of actual clearance will apply under Section 15(1)(b). Whether it is rate of duty or rate of exchange, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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