TMI Blog1975 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia, from the whole of that portion of duty of customs leviable thereon which is specified in the first schedule to the Indian Tariff Act, 1932. The exemption granted by this notification was to remain in force upto and inclusive of March 31, 1967. 2. Pursuant to an import licence obtained by the respondents for import of glass tubings on or about February 2, 1967 the respondents placed an order with Sylvania International of New York, U.S.A. for the import of glass tubings of three different varieties, viz., (1) end formed fluorescent tubes, (2) flare tubings and (3) exhaust tubings. The said goods were shipped per s.s. Steel Fabricator which arrived at the port of Bombay on March 29, 1967. On the same date an import manifest of the said vessel was duly filed with the Customs Authorities and the Customs authorities issued an order granting entry inward for the said vessel. A bill of entry in connection with the clearance of the said goods was presented by the respondents on April 27, 1967 and the goods were actually cleared on June 6, 1967. At the time when the goods were cleared the Customs authorities accepted the contention of the respondents that in view of the exemption gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants was rejected by the Learned Judge, on the ground that when a fundamental right of a party is infringed a preliminary objection as to existence of an adequate alternative remedy cannot be accepted. He also further held that even though under Section 129 of the Act power was given to the appellate authority to dispense with deposit of duty demanded either wholly or in part such provision was not equally efficiacious or adequate alternative remedy available to the respondents. So far as the merits of the controversy were concerned, he held that the taxable event is the import of goods within the customs barriers; that the customs duties are charged on the goods on their being imported into the country; that the liability to pay customs duty is attracted when the goods are brought into the territorial waters of India and as the goods entered the territorial waters of India before March 31, 1967, they were exempt from payment of customs duty. In view of these findings, the impugned order passed by the Asstt. Collector of Customs, Bombay was quashed by the learned Judge. The appellants have filed this appeal against this order of the learned Judge. 3. Mr. Setalwad, on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellants is that this is not the only charging section but the chargeability is also contained in other provisions contained in Chapter V. Reference was made by him to the provisions of Section 15 which relate to the date for determination of rate of duty and tariff valuation of imported goods. The provisions of Section 15(1) are as under :- "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 46 on the date of 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 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." 6. Relying upon this section the contention of Mr. Setalvad was that as in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The word "import" is defined in Section 2(23) and under section unless the context otherwise requires "import" with its grammatical variations and cognate expressions means bringing into India from a place outside India. The word "India" is defined in Section 2(27). The definition is an inclusive definition and it states that "India" includes the territorial waters of India. Thus the combined effect of the words "import" and "India" in these two sub-sections of Section 2 is that import takes place when goods are brought into the territorial waters of India from a place outside India. As pointed out by the Supreme Court in Re: The Sea Customs Act (1878) Section 20(2). In the case of duties of customs including export duties though they are levied with reference to goods, the taxable event is either the import of goods within the customs barriers or their export outside the customs barriers. In the Gopal Mayaji v. T.C. Sheth, Desai J. points out :- "It is apparent to me that the act of importation would be completed at the period of time when the goods cross the customs barriers. The act of importation contrary to restriction and prohibition would be complete once the customs barr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter than the close of the previous year, though quantification of the amount payable is postponed." These observations fully justify the clear distinction that exists inter alia between chargeability in respect of a tax or a duty and the quantification of the amount payable in respect thereof. The only charging section in respect of levy of customs duty is Section 12(1). As provided in that section 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. Thus the levy of customs duty either in respect of import or export of goods is under this section and such levy is subject to other provisions of the Act or any other law for the time being in force. The chargeability in respect of levy of customs duty arises when the goods are imported into India, i.e. when they cross the customs barriers as stated above. That event in the present case took place much prior to March 31, 1967 when the exemption notification was operative. Such chargeability in respect of levy of customs duty ought not to be confused with quantification of the amount or asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce after its arrival when carrying imported goods. Section 31 lays down that imported goods shall not be unloaded from vessel until entry inwards is granted. Such restriction is evident if regard be had to the provisions of sub-section (1) thereof. Under that sub-section the master of a vessel shall not permit the unloading of any imported goods until an order has been given by the proper officer granting entry inwards to such vessel. These provisions merely relate to unloading of imported goods and the very expression "unloading of any imported goods" pre-supposes that the goods are already imported before they are unloaded. Chapter II of the Act deals with clearance of imported goods and exported goods. In this Chapter reference is made to the provisions of Sections 45, 46 and 47. Section 45 poses restrictions on custody and removal of mported goods. Under that section, save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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