TMI Blog1986 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... duty on import of copper and other articles thereof. It was contended by the petitioner that the brass scrap imported by them is master alloy and is covered by Heading No. 74.01/02 of Chapter 74 of the First Schedule. 3. The petitioner entered into a contract on 15th of February, 1982 with Phibro Asia Ltd. of America to buy approximately 60 short tons of brass scrap confirming two Nari Specification Abony at 72 U.S. Cents per pound C.I.F. Calcutta. Pursuant to the said contracts the goods arrived at Calcutta on board the vessel 'Tulsidas'. The goods arrived in lots and under different bills of lading. On 27th February, 1982 the petitioner entered into another contract with Phibro Asia Ltd. to buy approximately 108 mt. tonnes of brass scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty of Customs leviable on such goods under sub-section (1) of Section 44 of the Finance Act, 1982. Hence, the petitioner contended that the goods so imported by the petitioner will exempt from the whole of the auxiliary duty of Customs leviable on such goods under sub-section (1) of Section 44 of the Finance Act 1982. 4. By notification dated 11th May 1982, bearing No. 136 as amended by notification dated 14th May 1982, Notification dated 26th May, 1982 and Notification bearing No. 174 dated 28th June, 1982 and 22nd July, 1982 Customs Notification dated 28th February, 1982 bearing No. 60/82 was superseded and the Central Government. exempted goods which were partially or wholly exempt from the duty of Customs specified in the First Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritorial waters of India during the subsistence of the notification bearing No. 136/82, dated 11th May, 1982 and before 16th November, 1982 which would be evident from the bill of entry for warehousing the said goods. Hence, the petitioner was entitled to the exemption granted under the notification dated 11th May 1982. The petitioner filed a bill of entry for home consumption in respect of one of the lots of the goods but the customs authorities had imposed auxiliary duty at the rate of 35% ad valorem. Such imposition of duty according to the petitioner was invalid and without jurisdiction. 5. The respondent authorities contended first of all that being aggrieved by such assessment the petitioner ought to have availed of the alternativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act. As per Section 15 of the Customs Act the date of presentation of the bill of entry and the date of final entry of the Vessel is the criteria for determination of rate of duty whereas for ex bond bill of entry date of removal of the goods from the warehouse is the test. The petitioner cannot be allowed to approbate and reprobate inasmuch as in an earlier writ petition, the writ petitioner claimed that brass scrap did not fall under Notification No. 156/77-Cus., dated 16th July, 1977. Now in the instant petition, the same importer is claiming exemption of auxiliary duty taking a contrary stand by contending that the brass scrap fall under such notification. For basic Customs duty the petitioner denied that Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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