TMI Blog1986 (2) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... passed amending Sections 37,86 and other sections of the parent Act. The contesting respondents paid duty at the rate of one rupee per lb. On clearing the goods, they claimed refund of part of the money paid alleging that they were liable to pay duty at the rate of 12 annas per lb. only. Their applications for refund were rejected by the Assistant Collector of Customs. Their appeals to the Collector of Customs and revision petitions to the Ministry of Finance were also dismissed. Thereupon, they filed writ petitions before the Calcutta High Court asking for the issue of appropriate writs directing the refund of the excess duty paid. D.N. Sinha, J. dismissed the writ petitions. On appeal, a Division Bench of the High Court set aside the order of D.N. Sinha, J., and allowed the writ petitions. The customs authorities now appeal to this Court on certificates granted by the High Court. The only question in issue before us is at what rate the import duty was chargeable on the goods. 2. The appeals were argued in the Courts below and before us on the footing that the rate of duty applicable to the goods must be determined by reference to the Sea Customs Act (VIII of 1878), as it stoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be the date of delivery of the bill of entry to the Customs Collector within the meaning of Section 37, and the rate of duty chargeable on the imported goods must be the rate in force on that date. 5. Condition No. 2 of the relevant bills of entry provided that for the purposes of Section 37 they would be deemed to be delivered on the date on which the order for inward entry would be passed. This condition could not override the provisions of Sections 37 and 86. Under those sections, no date earlier than the date of the landing of the goods could be treated as the date of delivery of the bill of entry to the Customs Collector. The rate of duty leviable on the imported goods must be determined with reference to Sections 37 and 86 and not by reference to condition No. 2 of the bill of entry. Under the Sea Customs Act, 1878, as it stood before the amendment, the contesting respondents were, therefore, liable to pay duty at the rate in force on or after April 30, 1955, i.e., at the rate of 12 annas per lb. only. 6. Sections 37 and 86 of the Sea Customs Act were amended by Act XXI of 1955. Under the amended Section 86, the bill of entry may be delivered to the Customs Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atullah, J. - This is an appeal by certificate against the judgment of the High Court at Calcutta, July 14, 1961. By the judgment under appeal a Divisional Bench consisting of the Chief Justice and Mr. Justice G.K. Mitter, reversing the decision of Mr. Justice D.N. Sinha, granted a petition under Article 226 of the Constitution filed by the respondent G. Dass and Company and ordered the Union of India to refund to the Company a sum of ₹ 5,661-1-3 as excess amount of import duty. 11. G. Dass and Company imported split betelnuts from Singapore, by S.S. Eastern Queen under Bill of Lading No. 37 dated April 12, 1955. Before the vessel berthed a Bill of Entry for consumption was presented to the Collector of Customs on April 26, 1955 and was marked as before Entry . Duty at the rate of Re. 1 per lb. was paid on the consignment. The vessel entered under order, dated April 27, 1955 and the cargo was discharged after April 30, 1955 and the consignment of betelnuts was landed on or about May 7, 1955. On April 30, 1955 a notification was issued reducing the duty to Re. 0-12-0 per lb. On May 7, 1955 the Sea Customs Act, 1878 (8 of 1878) was amended by the Sea Customs (Amendment) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to the pilot, officer of Customs or other person duly authorized to receive the same. Section 57 next provides that no vessel arriving in any customs-port shall be allowed to break bulk until this manifest has been delivered and a copy of such manifest together with an application for entry of such vessel inwards has been presented by the master to the Customs Collector and an order has been given thereon for such entry. These two provisions show that a vessel cannot pass the prescribed point until the manifest is delivered and an order for the entry of the vessel inwards is obtained. We may now turn to Sections 86, 87 and 89 which deal with the assessment of dutiable goods and clearance of the goods on payment of the duty. Section 86, as it originally stood, read as follows : 86. The owner of any goods imported shall, on the landing thereof from the importing ship, make entry of such goods for home consumption or warehousing by delivering to the Customs Collector a bill of entry thereof in duplicate in such form and containing such particulars in addition to the particulars specified in Section 29, as may, from time to time, be prescribed by the Chief Customs Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prescribed that the date of delivery was not the actual date, that is to say, the 26th of April, but the date on which the order for entry inwards was passed, that is to say, April 27. Mr. Justice Sinha observed that this made no difference to the case because whether import duty is calculated as on April 26 or as on April 27, the old rate would be applicable and the order of the Assistant Collector of Customs was right in the circumstances of this case. The Divisional Bench, on the other hand, held that the Explanation to Section 37 did not apply to the case because under Section 37 the rate of duty applicable to any goods imported would be the rate in force on the date on which the bill of entry thereof is delivered under Section 86, that is, on the landing of the goods as stated in Section 86. Therefore, the rate applicable must be the rate in force on the date the goods were landed. There is nothing to show when this consignment was landed. The petition stated that the consignment was landed on or about May 7, 1955. This was not specifically denied and another date suggested. Mr. Justice D.N. Sinha stated, in narrating the facts, that the consignment was landed before the 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manifest is delivered the delivery of the manifest and not the landing of the goods is the crucial fact. Under the new explanation to Section 37 the earliest date will be the date of the order of the entry inwards and thereafter the date on which the bill of entry is actually first presented. The need for the second clause in the bill of entry disappears. 17. I shall now attempt to construe Sections 37 and 86 as they were prior to these amendments. There are two fundamental facts which must be borne in mind when construing them. The first is that an explanation must be accepted according to its own terms. An explanation seeks to explain a particular proposition, and it stands to reason that explaining the explanation by referring to other provisions may not be open. The explanation which is added to Section 37, is intended to explain that section, and this leads to the second fundamental fact, namely, that the explanation lays down the exact point of time when the bill of entry can be taken to be delivered for the purposes of the section . The purpose of the section is that duty is calculated at the rate in force when the bill of entry is delivered under Section 86. Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Re. 1 per lb. and those landed on the 7th at Re. 0-12-0 per lb., or is the whole consignment subject to the higher or the lower rate? I can see no answer to these questions. 19. To avoid such an impossible result the explanation must be read and construed on its own terms and must not be made a new explanation with the aid of Section 86. As the bill of entry was presented on the 26th April, 1955, it could either be treated as presented on that date under the Explanation to Section 37 or on the 27th April, 1955 under clause 2 in the bill of entry for home consumption if it could be held applicable, a point I do not decide. But it could not be held to have been presented on any of the dates from April 30 to May 7 during which the goods were landed because there is no provision under which another date can be fixed either actually or even fictionally once the bill of entry is presented and the fiction in the explanation to Section 37 applies. It may be contended that under my construction of the sections the bill of entry may be presented at any time say six months before. The short answer to that is that the bill of entry is intimately connected with the Master's manife ..... X X X X Extracts X X X X X X X X Extracts X X X X
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