TMI Blog1982 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... eath yon cliff they stand, To show the freighted pinnace where to land; To load the ready stood with guilty haste; To fly in terror o'er the pathless waste;" These lines were quoted by Mr. Williams in his book 'Contraband Cargoes, Seven Centuries of Smuggling'. Bacon and Blackstone, Trevelyon and Pike have all dealt with `the habits and happenings that in the eighteenth and early nineteenth centuries that lie behind the laws against smuggling' presenting 'a familiar and romantic chapter of social history' Dr. Johnson described a smuggler as "a wretch who, in defiance of justice and the laws, imports or exports goods either contraband or without payment of the customs. (See generally the comments in Forbes v. Traders Finance Corpn. Ltd., (1971) 45 A.L J.R. 668. The legal principles in relation to various facts of these transactions are gatherable from judicial decisions rendered in such jurisdictions. Those principles may illumine the twilight area yet unlit by decisions of the Supreme Court of India. With this prefactory note, the facts of the case, the question posed for consideration, the discussion thereon and the ultimate conclusion may be attempted. 3. As for facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts, the query, whether the goods which reached the Port of destination crossing the customs barriers only after 31-12-1978 and well before 5-1-1979 are exigible to duty, could have been easily answered. Indubitably they would be, the exemption not being available. However, the vessel due to reasons unknown and perhaps irrelevant as regards the cases, had rached Bombay even as early as on 28-12-1978. Obviously it had been in the territorial waters of India and further inward; the ship had crossed, and with her the goods in question the customs barriers of the Bombay Port. She stayed secure in that Port for a few days before she set sail again and reached Cochin on 4-1-1979. 8. It appears that the petitioners had expected the arrival of the ship much earlier. On that expectation, the Bill of Entry was submitted even on 21-12-1978, indicating the date of arrival of the vessel at Cochin as 25-12-1978. These facts, namely, the entry of the vessel in the territorial waters of India around Bombay Port at about 28th of December, 1978 and the submission of the Bill of Entry to the Import Department at Cochin on 21-12-1978 by the clearing agents of the petitioners, have been clutched upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and is an essential ingredient of that intercourse of which importation constitutes a part'. 12. Judicial decisions have, as stated earlier, considered and construed the term under different contexts. It is but natural that observations in such decisions with emphasis on a particular facet relevant for that decision may be apt and correct viewed from the factual matrix of the particular case so decided. If, however, divorced from the factual considerations, undue emphasis is given to any particular observation, it may obfuscate the observation and even distort the concept, as it happened to the six blind men while they examined with the elephant. Learned men in law have, therefore, cautioned about the application of the principles discernible from decided cases with care and caution. That has become all the more necessary in the present case as many have been cited at the Bar, and some have come to my notice, atter the cases had been reserved for judgment. I shall, therefore, endeavour briefly to allude to the relevant statutory provisions and the decided cases helpful for resolving the controversy. 13. Before referring to the statutory provisions, it may be of advantage t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Government as they apply in respect of goods not belonging to Government. * * * * 15. Date for determination of rate of duty ant tariff valuation of imported goods. - (1) The rate of duty 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 46, on the date on which a bill of entry in respect to 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 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. (2) The provisions of this section shall not apply to baggage and goods imported by post." Section 30 deals with the delivery of import manifest or import report. Thereunder an obligation is cast on a person-in-charge of a conveyance carrying imported goods to deliver to the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a voluntary arrival within some port with intention to unload the cargo". (emphasis supplied) 17. That when goods are carried through the limits of harbour and then landed elsewhere it would not lead to a situation where goods are "imported into a harbour" had been held in Wilson v. Robertson, (1855) 24 L.J.O.B.185, a decision which has been referred to with approval by our Supreme Court. The Judicial Committee of the Privy Council too explained the concept of `import' in the setting of Canadian Customs Statute in Canada Sugar Refining Co. v. The Queen, (1898) A.C. 735, when it held that "'imported into Canada' meant imported at the port of discharge and at no earlier port of call" (emphasis supplied). In the Australian decision, (1974) 48 A.L.J R. 232, after referring to the wealth of judicial opinion on the subject, Gibbs, J. expressed the views, and expressed them forcibly in the following words : "However whether or not the sea within three nautical miles of the coast should be regarded as part of Australia for other purposes, it is, in my opinion, clear that goods are not imported simply by bringing them within the three miles limit. It does not conform to ordinary us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended for an importer at Cochin, but with other merchandise too dischargeable at other Ports in India and intended for other importers in India, called on some such ports in India before it reaches the Cochin Port for discharging cargo in respect of which importation was contemplated at Cochin by the persons intending import. Could it be said that every time the vessel entered a Port in India, there has been an importation and consequently a liability for import duty. The absurd and disastrous consequences of the result, prima facie, are such as that could not have been intended by the statute at all. Yet, the mere possibility of their being such inconvenient and absurd consequences may not deter a court from placing on a statute literal interpretation, if it is warranted on a consideration of all the relevant cannons of construction. Whether such a literal reading should be made in these cases, may have to be considered at some length. 19. Imports generally take place as a result of transactions between traders, between two different countries. Such transactions in modern commercial world mostly partake the character of a sale as Chief Justice Marshall observed in Brown v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l fact that the importer has intended the goods to be imported at the Port of Cochin. In this view of the matter, I am clearly of opinion that the mere entry of the vessel with the goods into the territorial waters or even berthing in the port of Bombay will not, vis-a-vis the petitioners importers at Cochin, constitute a completed import of the goods at Bombay. That was a matter of mere transit. Importation took place only when the vessel crossed the customs barriers at the intended Port of importation, namely, Cochin. 20. My conclusion, I feel, is in accord with the principles relating to the interpretation to be placed on the term 'import' as given by the Supreme Court in Empress Mills v. Municipal Committee, Wardha (A.I.R. 1958 S.C. 341). The inconvenience and confusion which would result in a literal construction of the words 'import' and 'export' by causing even the goods in transit being subjected to tax on arrival and departure at every intermediate station was dealt with at length in that decision. Inordinate delay and unbearable burden on trade which such an interpretation would place, were also referred to there. 21. The same reasoning will apply with equal force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) It cannot be said that the moment an aircraft lands at an international airport in this country, the goods are imported and to hold otherwise would create inconvenience and confusion and would render the goods which are in the aircraft meant to be carried to other countries subject to the Customs laws of this country. (3) Once a passenger enters the Customs area and makes a declaration of what all he had brought and does not make any attempt to take the goods across the Customs barrier in violation of the Customs laws of this country, it cannot be said that he had imported or attempted to import any goods contrary to any prohibition imposed by and under the Act or any other law for the time being in force." These principles were approved of as accurate and correct in a later judgment of the Calcutta High Court in Shewbuxrai Onkarmall v. Asstt. Collector of Customs Others [1981 (8) E.L.T. 298]. That decision further noted another decision of the Madras High Court reported in K. Jamal Co. v. Union of India [1981 (8) E.L T. 162] and the decision of the Supreme Court in M/s. Prakash Cotton Mills (P) Ltd. v. B. Sen and Others, A.I.R. 1979 S.C. 673 = 1979 (4) E.L T. 241 (S.C.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sought a binding and authoritative interpretation of that judgment. That interpretation was ultimately given by the Division Bench in the decision in Synthetics Chemicals Ltd. v. S.C. Continiho Others, 1981 (8) E.L.T. 414. The later Division Bench, after a discussion of the case, indicated "the only manner in which that judgment be understood and implemented in its operation when different facts are presented before the court". It must, however, be noted that in the present case, the facts attracting the provisions of Section 15(1)(b) do not at all exist. The wide observations in the judgment in M.S. Shawhney's case, (1975) 77 Bom. L.R. 880 have to be understood and applied in the peculiar factual background of that case. In respect of an importer admittedly at Bombay, and intending importation at Bombay. If the ship carrying the goods entered the territorial waters and berthed at the Port of destination as intended by the importer, the importation may be complete, at any rate as regards the chargeability; when the vessel enters the territorial waters of the country. It may be open to contend that in such a case removal of the goods from the bonded warehouse is not a mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in O.P. No. 928 of 1979, besides supporting and elaborating the contentions urged in the other cases pointed out some material factual differences in his case. The vessel, in that petition carried goods from Italy to Cochin. It is claimed that the vessel entered the territorial waters long prior to 31-12-1978. The counter-affidavit is not clear or specific on this question. It has proceeded on an erroneous assumption that the case is similar to other case. The fact that in the other cases, the vessel crossed the Customs barriers of Cochin only after 1-1-1978, a fact which has a material bearing on the leviability of import duty, appears to have been missed by the respondent. Without a decision on the factual point, it may not be proper to have a final decision in that case, including the legal position. The Bombay decisions prima facie support the petitioner's contentions. I direct the Department to examine the case afresh giving him an effective opportunity to put forward his contentions, factual and legal. Till such adjudication is concluded, necessary steps shall be taken against the petitioners in that case. The result is that the contentions in all cases except O.P. No. 928 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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