TMI Blog1995 (10) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... ship and could be exported. It is this `entry outwards', therefore, which would be the relevant entry qua which the rate of customs duty for export had to be worked out. Respondent's writ petition was, therefore, liable to be dismissed and was erroneously allowed by the High Court.In the result this appeal succeeds and is allowed. The judgment and order of the High Court are set aside. - 1482 of 1976 - - - Dated:- 11-10-1995 - B.P. Jeevan Reddy and S.B. Majmudar, JJ. [Judgment per : S.B. Majmudar, J.]. - The Principal Appraiser (Exports), Collectorate of Customs Central Excise, Customs House, Cochin-3, the Appellate Collector of Customs, Customs Central Excise House, Madras and the Union of India represented by the Joint Secretary, Ministry of Finance, Department of Revenue and Insurance, New Delhi have preferred this appeal by special leave against the judgment and order of a Division Bench of the Kerala High Court allowing writ petition of the respondent on 24th November 1972. A few relevant facts to highlight the grievance of the appellants are required to be mentioned at the outset. 2.Respondent at the relevant time carried on the business of export of coir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder these circumstances the respondent moved the High Court of Kerala at Ernakulam in the aforesaid writ petition. A Division Bench of the High Court allowed the writ petition by its order dated 30th July 1975 and directed the appellant No. 1 to refund the amount of Rs, 4,444.96 to the respondent. It is this order of the High Court which is challenged by the appellants in this appeal. 7.Learned counsel for the appellants vehemently submitted that on a conjoint reading of Sections 16(1) with the proviso, 17(1) and 50 of the Act it has to be held that the proper export duty chargeable on any goods sought to be exported would be duty payable on the date when `entry outwards' for the concerned vessel through which the goods are exported was issued. That in the present case the goods in question got exported through vessel S.S. P'Xilas and `entry outwards' for the said vessel was issued only on 9th August 1966. That the export duty payable on that day was 25% ad valorem and consequently the earlier `entry outwards' for the vessel the S.S. Neils Maersk which never resulted in the export of the goods was totally redundant and of no legal effect. That the High Court had patently erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form. The exporter of any goods, while presenting a shipping bill(2) or bill of export, shall at the foot thereof make and subscribe to a declaration to the truth of its contents." Once the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation. Section 39 of the Act provides that the master of the vessel shall not permit the loading of any export goods, other than baggage and mail bags, until an order has been given by the proper officer granting entry-outwards to such vessel. The aforesaid statutory provisions clearly indicate that various steps have to be taken by an exporter before his goods actually get exported meaning thereby they go out of Indian territorial waters. In the facts of the present case it is not in dispute that the respondent had entered his goods for exportation as per Section 50, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell sustained. On the scheme of the Act the customs duty by way of export duty is levied when the goods are exported or taken out of India. In the present case the goods never left the territorial limits of India on any day prior to 9th August, 1966. Earlier was an incomplete or inchoate attempt on the part of respondent to export these goods through vessel S.S. Neils Maersk. For that vessel even though `entry outwards' was obtained it could not result into any export as per Section 39 of the Act as that ship had no room to carry these goods. Consequently the goods remained unexported through that vessel. The effective export of these goods took place only by the next vessel S.S. P'Xilas. For that purpose the shipping bills were duly amended, procedure of Section 50 read with Section 51 was, therefore, followed afresh by the respondent and when he got `entry outwards' for vessel S.S. P'Xilas which permitted him to get these goods loaded in that ship as per Section 39, the prevalent rate of duty which the respondent had to bear on the exported goods would be the duty at the rate prevalent when `entry outwards' for ship S.S. P'Xilas was obtained by the respondent. That is, the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the name of the vessel through which the goods are to be exported is one of the essential requisites of such a shipping bill. It becomes thus clear that the shipping bill as well as the ultimate `entry outwards' for the concerned goods sought to be exported must have reference to the vessel through which such goods are to be exported. Therefore, before any goods are exported out of Indian territorial waters which vessel is to be utilised for exporting them, becomes a relevant consideration. The concerned shipping bill has to be lodged with reference to a given vessel which is to carry these goods out of the Indian territorial waters and in connection with such a vessel the `entry outwards' has to be obtained and only thereafter the master of the vessel should allow the loading of the goods for being exported out of India. The rate of duty payable on such exported goods would, therefore, be the rate of duty that was prevalent at the time when `entry outwards' through a given vessel is obtained. There cannot be an `entry outwards' in connection with a vessel which does not actually carry such goods for the purpose of export. In the facts of the present case, therefore, conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch vessel. In the present case, the agents of the ship made an application on 30 July, 1966 for entry outwards of the vessel. The Assistant Collector of Customs, Marmagoa granted permission on 30 July, 1966 to ship cargo on board the vessel. Under Section 39 of the Act loading of goods is not permissible until an order is made granting entry outwards to the vessel. In the present case, the Customs Authorities on 30 July, 1966 made an order granting entry outwards to the vessel." Under Section 16 of the Act the date of presentation of a16. shipping bill is the relevant date for determination of rate of duty and tariff valuation applicable to export goods. Under the proviso to Section 16 of the Act however there is a fictional date for determination of such duty. The fiction is introduced by providing for the date of entry outwards of the vessel to be relevant date in case where the shipping bill has been presented before the date of entry outwards of the vessel. The date of entry outwards of the vessel is the order made under Section 39 of the Act. Section 38 of the Sea Customs Act, 1878 was the counterpart17. of Sec. 16 of the Customs Act, 1962, Section 61 of the Sea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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