TaxTMI 
TaxTMI 
1983 (5) TMI 35
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....d inclusive of 31-3-1981. 4. However, on 16-10-1980 another notification was issued under sub-section (1) of Section 25 of the Customs Act in supersession of the earlier notification of 15-3-1979 by which the Central Government exempted PVC Resin when imported into India from so much of the duty of Customs leviable as is in excess of 40% ad valorem. The result of this notification was to impose a duty of 40% on imports of PVC Resin from that date onwards. 5. The petition states that the petitioner had placed indent sometime in July, 1980 for the import of PVC Resin. The ship arrived at Sandheads (which is within the territorial waters of India) on 7-10-1980. The Import General Manifest in respect of the said vessel was filed with the Customs Authorities on 7-10-1980. The Bill of Entry for Home Consumption was filed on 13-10-1980. Permission was obtained by the petitioner to store the goods in the warehouse pending clearance. The Bill of Entry inwards is dated 23-10-1980. The petitioners when they went to clear the goods sometimes about 21st October, 1980 were asked to pay duty of customs of 40% + 5% plus countervailing 45% plus special 5% on countervailing. The demand was create....
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....tion 25(1) does not convert that power into an Executive or Administrative power and that such an exercise of power is an exercise of legislative power and no estoppel can be pleaded against a Statute. 9. This matter was considered again by a Full Bench of this Court in Bombay Conductors & Electricals Ltd. v. Sh. K. Chandramouli, C.W. 1295/1980, decided on 3-3-1983. The Full Bench has taken the same view as the earlier Division Benches and has held that a notification under sub-section (1) of Section 25 is a legislative order and against the statutory notifications issued from time to time under Section 25(1), estoppel cannot be pleaded because of the theory that against the operation of the Statute there can be no estoppel. POINT No. 2 : Is the Notification of 16-10-1980 issued in the public interest? 10. The next argument is that no public interest is served by the 16-10-1980 notification superseding the earlier notification by which the whole of customs duty has been exempted. There are a series of hurdles for the petitioners to succeed in this plea. This argument is really the same as that of plea of promissory estoppel, though put in a different manner. We have already held....
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....able in amount or in respect to the property to which it is applied. Those are matters in respect to which the legislative determination is final". [Vide Patton v. Brady] (184 U.S. 608) Estoppel cannot be invoked where the result will be to compel the Government to continue the exemption which a competent enactment has validly authorised the executive to withdraw in the public interest at any time. In public interest exemption can be granted. In public interest exemption can be rescinded". [See Bombay Conductors' case (supra)]. 13. In that view, as observed above, it is really unnecessary to examine the circumstances from which the Central Government was satisfied that it was necessary in the public interest to issue the notification of 16-10-1980. In that context there would be no infirmity as was sought to be urged by Mr. Gokhle, the learned Counsel appearing in one of the Civil Writ petitions, to the effect that no facts had been placed in justification of the later notification which dealt with the item, unlike PVC Resin which is the item imported in most of the writ petitions. But nevertheless Mr. Wadhwa the learned Counsel for the Union of India, stated that consideration wa....
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....e in favour of imported resins. Even while making the above changes and after the issue of notification of 16-10-1980 a difference of about Rs. 800/- per tonne was maintained in favour of imported resins. These facts are detailed in support of the plea that public interest required preventing anti-dumping operations from abroad and further public interest was kept in view by reducing the difference between the imported PVC resin and the indigenous price to a reasonable margin which still permitted the indigenous consumer to get the imported material either at the price of domestic material or even from abroad. The petitioners' argument seems to suggest as if public interest is only for the importer so that if he could import PVC as he was doing in July, 1980 with a margin in favour of the imported PVC resin of Rs. 4,530/- all this benefit should have been allowed to remain. By modifying full exemption public interest is served by state sharing a part of Revenue and yet give reasonable protection to the local industries. Thus even on the short ground of facts it cannot be suggested that there was no reasonable ground for the Central Government to be satisfied that it was necessary t....
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....dify the said notification in the like manner. Reference to Section 159 by Mr. Kohli only shows that a notification issued under Section 25 has to be placed before each House of Parliament and if both Houses agree in making any modification or both Houses agree that the notification should not be issued the rule or notification shall have effect, only in such modified form or be of no effect as the case may be. It is not Mr. Kohli's case that the notification issued on 15-3-1979 or 16-10-1980 did not comply with the provisions of Section 159. He, however, sought to urge that as the earlier notification of 15-3-1979 had not been modified by the Parliament it became immune and Central Government could not thereafter issue a notification modifying the total exemption to partial exemption. It is a strange argument because it is the Central Government which initiated the earlier notification of 15-3-1979 and it is the same authority later on which is to initiate any subsequent notifications. The Central Government when issuing notification under Section 25(1) is not in any way violating the mandate of Parliament because in fact the power to issue a notification under Section 25(1) is a ....
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.... counsel for the petitioners that if ship carrying the goods had entered the territorial waters after 16-10-1980 the same would have to bear levy of duty of customs at 40% in terms of 16-10-1980 notification. But the Counsel for the petitioners contend that the moment the ship entered the territorial waters on 7-10-1980 the importation took place and was complete and the rate of duty of customs leviable is that prevailing on that date, which because of notification dated 15-3-1979 of full exemption would be Nil (duty). Support from this contention is sought from Section 2(23) of the Act which defines `import' to mean bringing into India from a place outside India and Section 2(27) which defines `India' to include the territorial waters of India. This argument proceeds on the assumption as if the Act gives no indication as to how to determine the date for rate of duty, rather the contrary. The Act specifically fixes a date for determination of rate of duty........of imported goods, in Section 15 of the Act which reads as under : "Date for determination of rate of duty and tariff valuation of imported goods, - (1) The rate of duty and tariff valuation, if any, applicable to any imp....
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.... 2(23) and 2(27) that import takes place when goods are brought into territorial waters of India from a place outside India. It was also of the view that a clear distinction exists between the concept of chargeability and the concept of assessment or quantification of the amount payable by way of customs duty. Though it was noticed that Section 15 of the Act specifies the date for determination of rate of duty, but yet it was held that this is entirely different from the chargeability which arises simply by Section 12(1) of the Act, which is when goods are brought into territorial waters of India. The Bench rejected the contention of Customs that rates of duty must be worked out in terms of Section 15. According to it the moment goods entered territorial waters that was the relevant date, and as exemption notification was in force on 29-3-1967, no duty was payable. With all out respect to the learned Judges we are unable to agree. Now Section 12(1) specifically provides that except or otherwise provided in the Act, duty of customs shall be levied at such rates as specified in Tariff Act. Now goods imported are dutiable goods, as being covered by Heading 39.01/0.6 in the Schedule to....
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.... does not mean that the goods in question are not chargeable to the levy of duty under Section 12. To take the present exemption notification issued on 16-10-1980 where the exemption is given from so much of duty of customs as is in excess of 40% it cannot be urged that part of the goods are not chargeable to duty of customs. In fact the whole of goods are chargeable. Only effect of Section 25(1) notification is to reduce the effective rate of duty leviable. Goods in question continue to be dutiable as held in a Division Bench judgment of this Court in Vishal Andhra Industries v. Union of India & Others (in CW 720/1982, decided on 19-3-1982). When, therefore, a question is posed before the Customs authorities as to what rate of duty is to be charged on the imported goods, he has to look at Section 12 and find out whether the goods imported is subject to duty of customs under the Tariff Act. If it is so, the further step is to find whether there is any exemption notification total or partial under Section 25 and then to work out the effective rate of duty of customs. But the calculation obviously has to be relateable to some date. The legislature has not left that vague, but has cho....
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....other port, goods forced in by stress of weather and landed, but not for sale are exempted from the payment of duties. The whole course of legislation on the subject shows that in the opinion of the legislature the right to sell is connected with the payment of the duties"......... "Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation, constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then as importation itself........." (vide para 23). It then went on to observe that "import is not merely the bringing into but comprises something more i.e. `incorporating and mixing up of the goods imported with the mass of the property' in the local area. The concept of `import' is as implying something brought for the purpose of sale or being kept". Similarly In re : Sea Customs Act, Section 20 (AIR 1963 S.C. 1760) the Supreme Court held that "truly speaking, the imposition of an import duty, by and large, results in a condition which must be fulfilled before the goods can be brought inside the customs barriers, i.e. before they form part of the mass of goods within the country." A f....
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....ection. This case really supports the contention of the respondents that import can only take place at the point of time when the goods are off-loaded to form a part of the mass of goods in the main land. Applying the same ratio to the present case bringing into territorial waters cannot amount to import for the purpose of duty leviable. 21. There are also serious and grave implications involved in accepting the argument that import should be deemed to be complete for the purpose of calculating the duty of customs the moment a ship enters the territorial waters of India. 22. It will be seen that there is no definition of territorial waters of India in the Customs Act, 1962. However, under the Territorial Waters Continental Shelf Act No. 80 of 1976 Section 2 defines the limit in relation to territorial waters, the continental shelf.........to mean the limit of such waters, shelf.........Section 3(2) says the limit of territorial waters is the unit of every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate base line. Section 3(3) empowers the Central Government whenever it considers necessary to alter the limits of territorial waters. No....
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....umption. To take an instance if a ship passes through the territorial waters of India onwards to Colombo (Sri Lanka) it is apparent that no customs duty is payable by the ship and yet the ship had entered the territorial waters of India, this instance would show the infirmity in the contention of counsel for the petitioners. Reference may also be made to (1898 appeal Cases 735). In that case Section 4 of the Customs Tariff Act provided for levying of customs duty on all goods enumerated, the several rates of duties when such goods are imported into Canada. Raw sugar of the description imported by the party could be imported free under old Schedule. But Schedule `A' to the Tariff Act was amended and a duty imposed. This amendment came into force on 3-5-1895. The ship sailed from Antwerp with sugar consigned for Montreal. On 29-4-1895 the vessel put into the Port of North Sidney, Canada. The ship reached Montreal on May 4, 1895. Before the arrival of the ship i.e. 2nd May, 1895, entry had been made at Montreal Customs House. Section 25 of Tariff Act required a master of every vessel when entering into the port in Canada to report to Customs Office which was done. Section 31 required ....
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....hall be entered either for home consumption or for warehousing or for transhipment. The question was whether the goods were imported within the meaning of the section. It was admitted case that the ship came to port and the only reason given why the goods were not landed was because Chambers had agreed, while the ship was in the port, to sell them to the owner of the ship. The argument was that as goods had not been taken off the ship there was no import. This plea was rejected, though Chief Justice Knox agreed (page 136) that goods are imported whenever they are brought into port for the purpose of being discharged there. But he held that goods had come at the port of destination and their character of importation cannot be affected merely because the goods had been sold while on the ship. That entering merely the territorial limits would not amount to import was said by Starke J. when he observed : "They may be imported by means of a ship or aircraft or through the post (cf. Sections 49 and 35). They may be brought within the territorial limits of Australia, and may indeed be subject to Customs control and yet not be 'imported' in the fiscal sense of the term. Thus goods shipped....
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.... the country for the purpose of use, enjoyment, consumption, sale or distribution so that they are incorporated in and mixed up with the mass of the property in the country, they cannot be said to have been imported or brought into the country." We are in respectful agreement with the said view. It is significant to note that Sylvania's case proceeded on the assumption that the Bombay High Court case (Gopal Mayaji v. T.C. Seth, AIR 1960 Bombay 478) where a learned Judge had made the observation that the act of importation would be complete at the period of time when the goods crossed the Customs barrier, was and approved in (Radha Kishan Bhatia v. Union of India & Others, AIR 1965 S.C. 1072), it meant that it had also been decided that the rate of duty must be worked out when the ship crossed the territorial waters of India. We may with respect point out that the issue in Radha Kishan's case (supra) was very different from the present one. In that case the question was with regard to Section 167(8) of the Customs Act of 1878 which provided that if any goods the importation of or exportation of which is for the time being prohibited, any person concerned in any such offence shall b....
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....is no chargeability and the goods are not liable to duty. Here again, the Bench misappreciated the position in law, for as we have pointed out above, notwithstanding the total exemption, goods remain chargeable by virtue of Section 12(1) of the Act (the Entry in Tariff Act is not deleted). Only effect is that duty is not payable because of total exemption. Goods can be said to be not chargeable only when the said goods do not fall within any entry in the Tariff Act. In our view Synthetics Chemicals case came to the correct conclusion that the rate prevalent on the day of clearance will apply under Section 15(1)(b) of the Act. Having come to the above conclusion the Bench could not still have distinguished Sylvania's case and should have held it to be wrongly decided. To hold that if there is a total exemption when the goods enter the territorial waters but later on that exemption is withdrawn, the goods will still be chargeable to no duty, is to fall in the error of giving the general meaning to the word `import' which has been criticised in Empress Mills case (supra). 28. In our view the fixation of the date for the purpose of duty is not affected whether there is total exemption....
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....l be levied a duty at a rate of 100%. The argument of Mr. Thakur suffers from the infirmity of assuming that if there is nil assessment the goods cease to be dutiable. As a matter of fact Section 2(2) defines assessment to include provisional assessment.........and any order of assessment in which the duty assessed is nil. Even the word `short levied' under the Excise Act, has been held to include where Nil duty is levied. Thus it has been held that in order to attract Rule 10 of the Central Excise Rules which provides that where duties or charges have been short-levied through inadvertance...........the person chargeable with the duty or charge so short-levied shall pay the deficiency on a written demand by the officer being made within 3 months, to mean that it is not necessary that some amount of duty should have been assessed and that the said amount should also have been actually paid. "That provision will apply even to cases where there has been a nil assessment in which case the entire duty later on assessed must be considered to be the duty originally short-levied". [Vide N.B. Sanjana v. E.S. & W. Mills, AIR 1971 S.C. 2039 = 1978 E.L.T. (J 399)]. Thus where there is total e....
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....re the Supreme Court was that the Customs authorities were not entitled to take the new rate of exchange on the depreciated value of the currency into consideration in respect of the consignment as it had been shipped in Bombay and stored in warehouse before the amended Section 15 came into force. This plea was rejected by the Supreme Court which held that it is Section 15 which specifies the date for determination of the rate of duty of the imported goods (emphasis supplied). It then went on to observe—"it is thus clear requirement of clause (b) of sub-section (1) of Section 15 of the Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehouse goods are actually removed from the warehouse"................."As it is not in dispute before us that the goods which are the subject-matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the Customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined ac....
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....on 86 it could be delivered only on the date of landing the Bill of Entry even if presented earlier must be deemed to have been delivered on the landing of the goods i.e. after 30-4-1955 and the rate of duty chargeable on the imported goods must be the rate in force on that date. It was consequently held that the importer was liable to pay reduced duty, i.e. at the rate of 12 annas per lb. only. 31. That it is Section 15 which determines the date for calculating the rate of duty is also the view of other High Courts. 32. In K. Jamal Co. v. Union of India, 1981 E.L.T. 162 (Mad.) by means of a notification of 1-7-1977 there was a total exemption on the import of palmoline. The importer's ship arrived on 22-2-1979. On 1-3-1979 another notification was issued by which the exemption was given as is in excess of 12.5%. The Bill of Entry was filed by the importer on 13-3-1979. The importer claimed that he was not liable to pay any duty in terms of 1-7-1977 notification. This plea was rejected and the High Court held that the relevant date is the date for presentation of the Bill of Entry which is 13-3-1979, in the terms of Section 15 of the Act. 33. Similarly in Ramlinga Mills case [19....
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....ill they are cleared for home consumption, which cannot be done without complying with Section 15, and after presenting a Bill of Entry under Section 46 of the Act. Therefore, the definition of the `imported goods' would suggest that import is not complete for fiscal purpose only at the time when the ship enters the territorial waters. Rather import for purpose of duty is not complete till the goods are cleared for home consumption. This finds support from the definition of `importer' which includes an owner in relation to any goods at any time between their importation and the time when they are cleared for home consumption. As a matter of fact a reference to Section 83 will show the hollowness of the argument of the counsel for the petitioners. This section provides for the rate of duty applicable to goods imported by post and provides that the rate in force on which the postal authorities present to the appropriate officer a list containing particulars of goods for the purpose of assessing the duty will be the rate; Proviso explains that if such goods are imported by vessel and a list of goods containing the particulars was presented before the date of arrival of the vessel it s....
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....amaged before clearance for home consumption—in fact it is so provided for in Section 22(c). Similarly Section 22(b) covers a situation where any imported goods are damaged after the unloading but before their examination under Section 17 (for assessment of duty). In both these cases in accordance with sub-section (2) of Section 22 the duty to be charged shall bear the same proportion to the duty chargeable on the goods before the damage or deterioration which the value of the damaged or deteriorated goods bears to the value of the goods before the damage or deterioration. Now if the argument of counsel for the petitioner was correct that rate of duty is to be that which is chargeable when the goods enter the territorial waters, this will come in conflict with Section 22(2) which provides for charging proportionate duty. Evidently Section 22 becomes unworkable if the argument of the petitioners was accepted that the rate of duty should be that which is prevalent at the time when goods enter the territorial waters. On this argument the question of further rebate on goods in warehouse could not arise because the import must on that argument be deemed to have been completed much ear....
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....f calculating the rate of duty leviable on the goods imported, the rate of duty applicable to such imported goods shall be the rate on the dates mentioned in Section 15; (b) the date for calculating on the rate of duty is not the date when the ship carrying the goods enters the territorial waters but is the date in the context of the various circumstances mentioned and specified in Section 15 of the Act; and (c) that the modification of the earlier total exemption notification dated 15-3-1979 by the later partial exemption notification of 16-10-1980 was in public interest and to subserve public good and is not liable to any constitutional or legal challenge. 41. As a result, the petitions fail and are dismissed with costs. The respondents/Union of India will have costs of petitions which we assess at Rs. 1,000 in each petition. 42. As the writ petitions are being dismissed the interim orders permitting the petitioners to import goods without paying the duty asked for by Customs Authorities are hereby recalled and vacated. The respondents are at liberty to take any appropriate steps as advised to realise the amount of duty from the petitioners in terms of the bond and/or bank gu....
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....o cover vessels, aircrafts, stores, baggage etc. Thus even vessels and aircrafts are treated as goods, and when they come from any place outside India and are not cleared for home consumption, they acquire and retain the character of "imported goods". 46. A plain reading of these provisions do lead to the inference that the legislature has very much broadened the scope of imported goods from what is commonly and in ordinary parlance understood. Thereby not only those goods which are intended for and actually brought on the land mass of the country and cleared for home consumption, are treated as goods imported, but their very bringing into India including its territorial waters renders them "imported goods". Rather the clearance for home consumption makes them to loose the imported character. 47. Section 12 of the Act which is of considerable significance, and on which much emphasis has been laid from the side of the petitioners, reads as under : "12. Dutiable goods. - (1) 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 ....
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....le thereon. Sub-section (2) of this Section at the same time empowers the Central Government to exempt from payment of duty under circumstances of exceptional nature to be stated in such order, any goods on which duty is otherwise leviable. The former power thus covers goods in general of particular type while the latter is exercisable with respect to specified individual goods. 52. Section 13 exempts imported goods from levy of duty if they are pilferred after unloading, but before clearance for home consumption. Section 20 provides for the bringing back or import of goods which had been earlier exported provided the event occurs within a specified period. Derelict, jetsam, flotsam and wreck are dealt with by Section 21. In case imported goods get damaged or deteriorated, appropriate relief can be granted under Section 22. The remission of duty on lost, destroyed or abandoned imported goods is looked after by Section 33. Similarly Section 24 provides for denaturing or mutilation of imported goods. 53. The person-in-charge of a conveyance [which term includes a vessel, an aircraft and a vehicle as per Section 2(9)] carrying imported goods is required within 24 hours after arrival....
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.... reproduced here :- "68. Clearance of warehoused goods for home consumption. - The importer of any warehoused goods may clear them for home consumption if - (a) a bill of entry for home consumption in respect of such goods has been presented in the prescribed form; (b) the import duty leviable on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for home consumption has been made by the proper officer." 55. Chapter XI contains provisions with regard to baggage carried by owners. Stores imported in a vessel or aircraft and meant for use and consumption in the vessel or transfer to another vessel are exempt from payment of duty (Sections 86 and 87). 56. Chapter XIV contains provisions for confiscation of improperly imported goods, and elaborates in what circumstances imported goods can be treated as such. Even an attempt to improperly import has been made penal. Section 125 gives an option to pay fine in lieu of confiscation. However, such payment of fine does not absolve the payment of duty and other charges otherwise leviable. 56. These various provisions of the Act hav....
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....orporated in and got mixed up with the totality of the property in the country, they cannot be said to have been imported. As such it cannot be said the moment the aircraft passes through the country or a ship enters the territorial waters, an importation takes place. Importation can only be when the goods cross the customs barrier. In K. Jamal Co. v. Union of India, 1981 E.L.T. 162 (Madras) also the word "import" in Section 2(23) has been interpreted to mean bringing into India for purpose of clearance of goods. Similarly in Prabhat Cotton and Silk Mills Ltd. v. Union of India, 1982 E.L.T. 203 (Gujarat), it was taken note that Section 12 ibid refers to "exportation from or importation into" of goods with reference to landmass of India and not with reference to the territorial waters of India. Had it been not so, "importation into India" would mean that customs duty would be payable even if the ship were to stray in territorial waters, or when the ship enters the territorial waters changes its course, turns back and leaves the territorial waters before landing the goods on the landmass of India. In 1981 E.L.T. 298, the view that the goods get imported when they enter the sea waters....
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....ht. There may similarly be various other happenings. Extensive territorial waters thus can nefariously be exploited by all sorts of elements with immunity. The authorities may as well find it extremely difficult to rope them in clutches of law of the narrow definition of import as to synchronise with the stage of actual mingling with the mass of the goods or ready for clearance for home consumption is allowed to prevail. 59. The Bombay High Court has thus in the case of M.S. Shawhney v. Messrs. Sylvania and Laxman Ltd., 1975, The Bombay Law Reporter 380, taken the view that import takes place when the goods are brought into the territorial waters of India. However, the learned Judges further proceeded to observe that there was nothing in the Customs Act which indicated that the chargeability was postponed until a bill of entry was presented. It is with regard to these latter observations that, with respect, it must be said that the impact of the provisions contained in Section 15 of the Act has not been properly construed. These provisions do not relate entirely to the limited assessment aspect of chargeability. The latter is taken care of by Sections 17 to 19. The scope of Sectio....