TMI Blog1987 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... th March, 1985 and on the same day, an Order directing clearance and loading of iron ore for exportation through the said ship was made under Section 51 of the Customs Act. The loading of the said ship began only on 19th March, 1985, in the evening. In the afternoon of the same day, the petitioners by their letter dated 19th March, 1985, informed the first respondent that the loading of the said ship had not commenced till the afternoon of the same day, but it was expected to start sometime later in the evening. They also brought to the notice of the Customs Authorities that they were entitled to the exemption of duty by virtue of the Notification No. 87-Customs, dated 17th March, 1985. The loading of the vessel began in the evening of 19th March, 1985 and was completed on 22nd March, 1985 at the mechanical ore handling plant at berth No. 9. Thereafter, the additional quantity of iron ore was loaded in the same vessel by the trans-shipper 'Gosalia Prospect' between 22nd and 25th March, 1985. After loading, the aforesaid vessel 'M.V. Pioneer Maru' sailed for Japan, at about 5.50 p.m. on 25th March, 1985. 3. Export of iron ore was subject to duty of Customs in accordance with the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limits of India. The learned counsel, therefore, submitted that only the goods which are already exported are liable to pay duty, if such duty has been imposed by law. Section 16 does not speak of any levy of duty, but deals only with the calculation of the rate of duty and the tariff valuation on export goods. Therefore, for the purposes of levying duty, Section 16 is not attracted. The learned counsel also brought to our notice the difference of the wording in Sections 15 and 16 inasmuch as in Section 15 a reference is made to imported goods, whereas in Section 16 the reference is only to export goods and not to exported goods. This clearly shows that the scope of Section 16 is merely to fix a rate of duty or tariff valuation, in case duty is payable. If no duty is payable, then, according to the learned counsel, the question of fixing the rate of such duty does not arise. Reliance was placed by the learned counsel in 'B.K. Wadeyar. Sales-tax Officer IV Division Licence Circle. Bombay v. M/s. Daulatram Rameshwarlal and Others' [AIR 1961 S.C. 311]. 'Yusuf Abdulla Patel v. R.N. Shukla' [1970 BLR 575], and 'Lucas T.V.S. Padi. Madras v. Assistant Collector of Customs, Madras and Oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice should not be denied to the petitioners only because they rushed to this Court instead of proceeding in appeal. Secondly, if at the present we dismiss this petition on that technical ground, in all probabilities, the petitioners will not be able to file the appeal as such remedy must be barred by the law of limitation. In the circumstances, therefore, we do not think that we should abstain from going into the merits of this petition only on the ground that the petitioners had not availed themselves of the statutory remedy of appeal. 7. Coming now to the merits of the petition, it will be pertinent to mention here that the first respondent has rejected the claim for refund on the ground that Section 16 of the Customs Act is clear in that the crucial date to determine the rate of duty applicable is the date on which the Shipping Bill is presented or the date on which the entry outwards is granted in respect of the Shipping Bill presented prior to entry outwards. Section 16 of the Customs Act deals with the date for determination of rate of duty and tariff valuation of export goods. Sub-section (1) provides that the rate of duty and tariff valuation, if any, applicable to any ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of the Madras High Court in Lucas Padi v. Assistant Collector of Customs, Madras (above). In fact, in Wadeyar's case. Their Lordships of the Supreme Court while dealing with the Import and Export (Control) Act, 1947, observed that "export" has been defined in the said Act as taking out of India by sea, land or air and that in the Exports (Control) Order, 1954, the word must be taken to have the same meaning as in the said Act. Then, it was observed that on that definition, the time of the export is the time when the goods go out of the territorial limits of India. These limits would include the territorial waters of India and consequently, the time of export is when the ship with the goods goes beyond the territorial limits. Similarly, in Yusuf Abdulla Patel's case, it has been observed that there can be no doubt having regard to the decision of the Supreme Court in Wadeyar's case, as well as to Section 2(18) of the Customs Act. 1962, that the term "export" connotes the actual taking out of the goods beyond the territorial limits of India. This view has also been accepted in Lucas Padi's case. 8. It is thus clear that there is a definite difference between export goods and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sea Customs Act, the Division Bench observed that there can be no levy of duty on goods which are not exported or which could not be exported. In other words, only when the goods are exported, i.e. when the export is complete, the duty can be levied. 10. It is an admitted position that the petitioners had filed the Shipping Bill on 8th March, 1985 and that the entry outwards had been granted on 11th March, 1985. It is also common ground that while filing the Shipping Bill, the petitioners had deposited towards the export duty, which was payable at that time, the amount of Rs. 3,00,000/-. The Notification exempting the export of iron ore from such duty came into force only on the midnight of 16/17th March, 1985. Further, it is common ground that the vessel 'M.V. Pioneer Maru' had left the territorial limits of India on 25th March, 1985, i.e. much after the exemption of duty came into force. Therefore, it is clear that at the time the iron ore loaded in the said vessel was actually exported, the export of iron ore was already exempted from payment of duty. This being so, there is no authority of law for the first respondent retaining the amount of Rs. 3,00,000/- which had been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
