9911796707
TMI Blog1981 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ,265/-. 2. The consignment was shipped by s.s. Datjan and the ship crossed into Indian Territorial Waters and the Indian Customs Frontier on June 17, 1974. An order of entry inward under Section 31 of the Customs Act was granted to the ship on June 17, 1974. The Bombay Port Trust declared June 25, 1974 to June 29, 1974 as the free delivery period and the general landing date in regard to the cargo brought by the ship as June 25, 1974. After discharging the cargo the ship sailed from Bombay on June 26, 1974. For the purpose of clearance of the consignment of Endosulfan the petitioners' Clearing Agent M/s. Tulsidas Khimji Private Limited presented a Bill of Entry dated June 29, 1974 to the Customs Authorities. The Department does not accept that it was presented on June 29, 1974, but claims that it was presented only on July 2, 1974 and for the purpose of this petition I will proceed on the assumption that the Bill of Entry was presented on July 2, 1974. The petitioners furnished to the Customs Authorities all relevant documents pertaining to the shipment of the consignment and requested the clearance for home consumption by granting exemption in accordance with the notification wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised three or four submissions to challenge the legality of the impugned order. The learned counsel submitted that the demand notice and the impugned order are without jurisdiction as the petitioners were entitled to the advantage of the notification both on the date of import and the presentation of Bill of Entry on June 29, 1974. The learned counsel further submitted that the impugned order indicates non-application of mind and while coming to the conclusion the Assistant Collector has violated the principles of natural justice. Mr. Chinoy also submitted that the impugned order threatening to enforce the bond goes beyond the terms of the bond executed by the petitioners. The principal submission of the learned counsel is that the exemption was available on the date of import of the goods and that advantage cannot be denied even assuming that the Bill of Entry was presented after the expiry of the period of notification. Mr. Dhanuka, the learned counsel appearing on behalf of the Department, on the other hand, submitted that there is ample evidence on record to establish that the Bill of Entry was presented after expiry of the period of notification on July 2, 1974. Mr. Dhanuka su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission of the learned counsel it is necessary to set out the provisions of Sections 12 and 15 of the Customs Act, 1962 which are incorporated in Chapter V of the Act dealing with levy of, and exemption from, customs duties. Sections 12 and 15 read as under: "12. (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Indian Tariff Act, 1934, or any other law for the time being in force, on goods imported into, or exported from India. (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government." "15. (1) The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 45, on the date on which a bill of entry in respect of such goods is presented under that section; (b) 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; (c) in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the goods were actually cleared on June 6, 1967. The question which arose for consideration before the Division Bench was whether the goods attracted customs duty as the bill of entry was presented only on April 27, 1967, that is, beyond the period of exemption. The Division Bench held that under Section 12 (1) of the Customs Act chargeability in respect of levy of Customs duty arises when the goods are imported into India. The combined effect of the definition of the words 'Import' and 'India' under Section 2 (23) and Section 2 (27) of the Customs Act is that import takes place when goods are brought into the territorial waters of India from a place outside India. There is nothing in the Act which indicates that the chargeability in respect of levy of customs duty is postponed until a bill of entry is presented. The Division Bench held that there is clear distinction between the concept of chargeability in respect of customs duty and the concept of assessment or qualification of the amount payable by way of customs duty. The Division Bench after quoting the observations of the Privy Council in Wallace Brothers Co. Ltd. v. Commr. of Income Tax, 50 Bombay Law Reporter 482, P.C., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification. The submission appears to be sound and requires to be upheld. 7. Mr Dhanuka, the learned Counsel appearing on behalf of the respondents, on the other hand, submitted that a plain reading of Section 15 makes it clear that the rate of duty shall be the rate in force on the date on which a bill of entry is presented. Mr. Dhanuka submitted that it is wholly irrelevant to refer to Section 12 of the Act for computation or determination of rate of duty. The learned Counsel further submitted that under Section 15 of the Act the on}y relevant date is the presentation of bill of entry for determination of customs duty. In support of the submission the learned counsel relied upon a decision of the Supreme Court reported in A.I.R. 1979 Supreme Court 675 = 1979 E.L.T. (J 241) in the case of M/s. Prakash Cotton Mills (P) Ltd. v. B. Sen and others. The learned Counsel also submitted that in view of the decision of the Supreme Court the ratio laid down by the Division Bench of this Court no longer holds good. In view of the submission, it is necessary to consider the facts and submission made before the Supreme Court to find out the exact dictum laid down in that case. The importers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of rate of duty and the question which was answered by the Division Bench of this Court in the case of M.S. Shawhney v. M/s. Sylvan and Laxman Ltd. (supra) did not come up for consideration. In these circumstances, the submission of Mr. Dhanuka that the decision of the Division Bench of this Court no longer holds good is not sound and cannot be entertained. It is clear and it is also not disputed Mr. Chinoy that the rate of duty would be one prevalent on the date of presentation of the bill of entry as provided by Section 15 of the Act. But what is crucial is whether the advantage of exemption can be made available to the petitioners where admittedly the goods were imported while the notification of exemption was in operation and that question did not arise for consideration before the Supreme Court. The submission of Mr. Chinoy is sound and in judgment the dictum laid down by the Division Bench of this Court is in no way affected or shaken by the decision of the Supreme Court. 8. Mr. Dhanuka then submitted that the decision of the Division Bench would have no application to the facts of the present case as the case before the Division Bench was of total exemption w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay Port Trust Warehouse. The Customs duty leviable on the item was 60% ad valorem but under the notification dated October 12, 1968 exemption was granted from payment of customs duty in excess of 27-1/2% ad valorem. The goods arrived within the territorial waters of India prior to the date of notification but were cleared from the warehouse subsequent to the date of notification some time between December, 1968 and June, 1969. The importer claimed advantage of the notification on the ground that the crucial date for determination of the customs duty under Section 15 of the Act was the date of removal or clearance of the goods from the warehouse and as the notification was in existence on that date the petitioners are liable to pay duty only at the rate of 27-1/2% ad valorem. The Customs Authorities disputed the claim of the petitioners claiming that the notification was not in existence on the date when the goods were imported into the Indian territorial waters and that being the crucial date the importers would not be entitled to the advantage of the notification merely because it was in existence on the date of clearance of the goods. The learned Single Judge accepted the con ..... 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