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TMI Blog1990 (3) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 27th October, 1989 it was presented by the importer for assessment. 3. On 1st November 1989 Notification No. 263/89-Customs came into force as a result of which an earlier notification of 1st March 1989 bearing No. 28/89-Customs was amended. As a result customs duties on Peas were reduced from 35% ad valorem to 10% ad valorem. 4. Thereafter M/s. Nav Maharashtra Chakan Oil Mills claimed that there were certain disputes relating to purchase of the said cargo between them and the foreign vendors. They contend that as a result, the contract between them and their foreign vendors was cancelled. The present petitioner in Writ Petition No. 3288/89 - Miss Anjali Shantilal Lunkad - claims that she purchased this very same cargo thereafter from the original foreign vendors on or about 6th November, 1989. On 10th November, 1989 the original importer M/s. Nav Maharashtra Chakan Oil Mills surrendered the bill of entry filed by them alleging that the transaction has been cancelled. On 11th November 1989 the steamer agent applied for amendment of Import General Manifest (I.G.M.) to show the name of the present petitioner as the importer in respect of the said cargo instead of Nav Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und and liable to pay customs duty at the rate prevailing on 24th October 1989. 7. The petitioner has now applied for withdrawal of the petition. In the circumstances set out above, I do not see why the petition should be allowed to be withdrawn. The petition, in my opinion, appears to be a gross abuse of the process of court. 8. The petition is, therefore, dismissed. The petitioner is ordered to pay differential duty accordingly so as to pay duty at the rate prevailing on 24th October 1989. 9. The petitioner to pay to the Respondents exemplary costs in the above circumstances, which are fixed at Rs. 10,000/-. The Respondents will be at liberty to encash the bank guarantee which is furnished by the petitioner pursuant to the order of 28th November 1989. The petitioner shall pay to the Respondents interest on the differential duty at the rate of 21% in the above circumstances. 10. Writ Petition No. 719/90: The cargo in Writ Petition No. 719 of 1990 arrived by the same vessel as the cargo in Writ Petition No. 3288/89. In writ petition No. 719/90 the original importers in respect of the consignment of peas covered by this petition were M/s. Vipin Enterprises. Their name was also s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other three consignments which were originally in the name of Kotak & Co. and Parekh Food P. Ltd. In respect of the bills of entry relating to the three consignments in the names of Kotak & Co. and Parekh Food P. Ltd., where the bills of entry were filed for the first time on 22-11-1989, the petitioners have been granted benefit of the new notification of 1-11-1989. They have been allowed to clear the goods at the new rate of duty. In respect of the other three consignments which originally stood in the name of R.T. Exports P. Ltd. where bills of entry had already been filed by R.T. Exports P. Ltd., fresh bills of entry submitted by the petitioners have not been accepted by the customs authorities. The Writ Petition No. 71/90 is in respect of these three bills of entry resubmitted by the petitioners and not accepted by the Respondent. 14. The petitioners contend that they have become owner and/or importers of these goods after the said notification of 1st November 1989. Hence they are entitled to the benefit of the said notification in calculating the customs duty payable by them in respect of the consignments in question. 15. Under Section 2(26) an 'importer' in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these bills of entry was the "importer" within the definition of Sec. 2 (26) of the Customs Act. It was only subsequent to the presentation of the bill of entry that the ownership of the goods changed. The present petitioners became the owners of these goods and therefore became the 'importer' within the meaning of the term under Sec. 2(26) of the Customs Act after the presentation of the bill of entry. They are, therefore, entitled to have their names substituted in the bills of entry so presented as also to have the Import General Manifest amended to show them as importers. But, for determining the rate of duty, the relevant date is the date on which the bill of entry was presented for home consumption by the importer under Sec. 46 read with Sec. 15(1). Valid bills of entry for home consumption in respect of these goods were presented by persons who were then the importers, prior to 1st November 1989. The rate of duty, therefore, is the duty prevailing prior to 1st November 1989. 19. In the case of Chowgule & Co. Pvt. Ltd. v. Union of India and Others reported in 1988 (38) E.L.T. 401 (Bombay) a bill of entry had been filed on 12-3-1987 in a wrong form. The Assistant Collector di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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