TMI Blog1985 (1) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... e of entering into the contract and at the time of shipment of the goods was at the rate of 20% per cent ad valorem under the provisions of Section 44 of the Finance Act. In addition thereto countervailing duty was leviable under Section 3 of the Tariff Act read with item 26AA of the First Schedule to the Excise Act. By a notification dated 1st of March 1983 the auxiliary duty in respect of Cold Formed Section from sheets galvanized was enhanced by 5% per cent i.e. from 20% per cent to 25% per cent. By another notification dated 19th May, 1983 the basic duty in respect of galvanized corrugated sheets was enhanced from 30% per cent to 60% per cent. It was the petitioner's case that on 18th of December, 1982 the Central Government made representation to the entire trade industry that the import of the said materials would be entitled to exemption from Auxiliary duty in excess of 20% per cent and countervailing duty in excess of Rs. 850/- plus 10% per cent in metric tonnes. The petitioner Govind Ram Aggarwal acted on the basis of such representation and/or promise of the Govt. of India and entered into the said contract for import of the said materials. By acting on the basis of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In addition thereto not only the petitioner was required to pay the duty to the customs and lending purpose but to pay the same twice over. The petitioner contended that no customs duty could be levied save and except the valuation at the time of importation. The freight cannot be included as a price of the goods, hence the inclusion of freight element for the purpose of assessment to the value of the goods imported in arbitrary, illegal and not permissible to be added for the purpose of assessment of the valuation of the goods. The petitioner paid insurance charges amounting to Rs. 9,750 to ensure safe arrival of the goods and for security reasons. Such payment towards insurance should not be treated as part of the price for the purpose of determination of the assessable value. Such insurance charges are independent of the price of the goods. Hence inclusion of the said charges towards valuation of the goods was improper. The inclusion of Rs. 62,000/- towards packing charges according to the petitioner was also erroneous inasmuch as the goods were packed in waste sheet wrappers which were normally used in the trade for packing such goods and those were not strong enough or suita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner were canalised items, hence could not be cleared under the Open General Licence inasmuch as the said goods fell under Serial No. 60 of Appendix VIII of Import Export Policy of Govt. of India 1982 to 1983. Galvanized Iron Steel Sheets/Stripes/Coiles plain or corrugated were covered under that item. These goods could only be imported not under the Open General Licence but under specific import Licence. The petitioner was not entitled to import those canalised goods under the Open General Licence. It was only through Steel Authority of India, the Canalising Agency through which such goods could be imported. Any importation of such goods under Open General Licence would amount to un-authorised importation and liable for confiscation under the Customs Act. As per the certificate of origin the goods had been described as prime Galvanized Corrugated Sheets which could only be imported through Steel Authority of India. But in the bills of lading issued by the Scindia Steam Navigation Co. Ltd. goods had been described as prime Galvanized Corrugated Sheets. But the Supplier's invoice wrongly described them as "Prime Cold Formed Section of Sheet Galvanized Corrugated". Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rates on 1st of March, 1983. The vessel carrying the goods arrived at the Port of Calcutta on the 20th June, 1983 and it was granted entry in ward on that day. Thereafter, the bills of entry was made and the bills of entry had been presented on 20th of June, 1983. Under the circumstances the petitioner was liable to pay additional duty in terms of the notification in respect of the said goods. The petitioner wrongly described the goods in the supplier's invoice from Switzerland to import the goods under the Open General Licence. Item 73.13 apply to sheets and/or plates which had been cut to non-rectangular shape perforated, corrugated etc. But actually the goods imported by the petitioner were not Cold Formed Sections but Cold Formed Sheets which would be corroborated by the manufacturer's certificates. Sections and sheets being two completely different items under two different headings of the Customs tariff, the petitioner could not take advantage of exemption or payment of lesser duty by giving a wrong description of the goods actually imported. In order to get the double advantage of importing the goods and exemption facility of 50% of duty leviable on such goods. For the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to adjudicate upon the disputed questions of fact. Hence, this Court is of the view that the determination of the goods and under which item of the schedule is attracted fell within the domain of the Customs Authority for determination. From the annexures made to the Affidavit-in-opposition affirmed on behalf of the Customs Authorities by Kishori Mohan Mondal indicated that the goods which had been imported by the petitioner were Prime Galvanized Corrugated Sheets of Spanish Origin. Those documents had been submitted by the petitioner himself before the Customs Authorities including the bill of lading granted by the Scindia Steam Navigation Co. as also the certificate of origin (Mill's Certificate) granted by the foreign seller. 7. In the case reported in AIR 1980 S.C.P. 1285, M/s. 3it Ram Shiv Kumar Others v. Ram Niwas Gupta Others, it was held that the principles of Estoppel was not available against the Government in exercise of legislative, soverign or executive power. So the doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. 8. So far the fixation of the valuation of the goods is concerned Section 14 of the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Others, it was held :- "A reference to Sections 14 and 15 of the Act will show that while Section 44 deals with the valuation of goods for purpose of issessment it is Section 15 which specifies the date for determination if the rate of duty and tariff valuation of imported goods". 13. So far the question of promissory estoppel is concerned in the case reported in AIR 1979 S.C.P. 621, M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of LJ.P. Others, the doctrine of promissory estoppel had been fully discussed and explained. Since the doctrine of promissory estoppel is an equitable doctrine it must yield when the equity so requires having regard to the facts of the case that it would be inequitable to hold the government to the promise made by it. The Court would not raise an equity in favour of the promisee and enforce the promise against the government, when the question of prejudice of public interest is concerned. The Court would have to balance the public interest, in the Government carrying out the promise, made to a citizen and if the public interest is likely to suffer, then the court would not compel the Government to hold to its promise. But such doctrine of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
