TMI Blog1988 (4) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-1977 the petitioners submitted the shipping bill for export of the second consignments and paid export duty of Rs. 31,250 to the Customs authorities under protest. The consignments were loaded on the vessel and the petitioners obtained Mate Receipts dated 28-4-1977 and 30-4-1977 in respect of the two consignments. These receipts indicate that on the said dates the consignments were loaded on the vessel. 3. Up to 30th April, 1977 Rape Seed extract was exigible to export duty. On 20.4.1977 a notification was issued under Sec. 25(1) of the Customs Act, 1962 as a result of which Rape Seed extract was wholly exempted from the payment of any export duty. 4. On 2-5-1977 the vessel sailed from Bhavnagar for Bombay. On 9-5-1977 the vessel sail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken out of India to place outside India, (emphasis mine). In contrast, Sec. 2, sub-sec. (25) of the Act defines "Imported goods". "Imported goods" means any goods brought into India from a place outside India" etc. Sec. 12 of the Customs Act, 1962 is the charging section. It states as follows :- 12.(l) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or exported from, India. (2) ** ** ** Under Sec. 12, therefore, export duty is levied on goods actually exported from India. Sec. 16 prescribes the date for determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification of 30th April, 1977. 10. There are several judgments which support such a conclusion. In the case of Khandelwal Metal Engineering Works v. Union of India reported in 1985 (20) E.L.T. 222 (SC) = AIR 1985 S.C. 1211 (paragraph 5) the Supreme Court has held that the charging section under the Customs Act, 1962 is section 12. 11. In the case of B.K. Wadeyar v. M/s. Daulatram Rameshwarial reported in AIR, 1961 S.C. 311 the Supreme Court was required to consider when an export takes place, it was required to consider the provisions of the Import Export (Control) Act, 1947. The definition of export under this Act is "Taking out of India by land, sea or air". This definition is similar to the definition of export under the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to refund. It observed that there was a difference between export goods and exported goods. It stated that Section 12 of the Act deals with the leviable duty on imported or exported goods, while Section 16 deals only with the rate of duty and tariff valuation on export goods. There was a clear difference between the concept of chargeability and the concept of assessment. It held that duty on exported goods is payable only when the export is complete. Since no duty was payable on the date when the export was made, the petitioners were entitled to a refund. 14. The same principle, in the case of imports, was applied by a Division bench of this Court in the case of Shawhney v. Sylvania Laxman reported in 77 Bom. L.R. 380. 15. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods are liable for payment of customs duty is the date of presentation of the Shipping Bills seems to be correct." The observation is an obiter dictum. Moreover, the Division Bench was led to make the observation because it felt a doubt about the correctness of the decision in Shawhney v. Sylvania and Laxman reported In 77 Bom. L.R. 380. The doubt is dispelled by the Full Bench decision in the case of Apar Pvt. Ltd. v. Union of India. As against this obiter dictum there is a direct decision of a Division Bench of this Court in the case of V.M. Salgaocar Brothers Pvt. Ltd., Goa v. Union of India (supra) which has applied the principles in Sylvania and Laxman's case to exports and has expressly laid down that Sec. 16 merely deals with the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to be exported attract duty when they are "export" goods and are sought to be taken across the customs barrier.' These observations are not germane to the ratio of the decision. The Court was not required to consider the point of time when export duty becomes leviable on goods which are exported. The observations do not relate to any point which was at issue before the Court in that case. Hence they are merely passing observations which cannot even be considered as obiter dicta. 19. Chagia C.J. in the case of Mohandas Isserdas v. AM Sattanathan reported In 56 Bom. L.R. 1156 at p. 1160 said : "An obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This definition draws a clear disti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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