TaxTMI 
TaxTMI 
TaxTMI 
1987 (10) TMI 69
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....vessel, giving them the benefit of the Exemption Notification No. 262 of 1958 or of the Notification No. 133 of 1987. 3. In October, 1969, the 'S.S. Maratha Transhipper', a transhipping vessel acquired by the petitioners arrived at and entered the Mormugao port. Soon after, a dispute arose between the petitioners and the Customs Authorities as regards the need to file a Bill of Entry under section 46 of the Customs Act, 1962, and after some correspondence exchanged, the Assistant Collector of Customs directed the petitioner by his order dated 22nd March, 1970, to file the Bill of Entry in respect of the said vessel as it was operating as a sea barge within the harbour limits. Petitioners appealed against the said order to the Appellate Collector who, however, by his order dated 27th July, 1970, dismissed it and affirmed the impugned order of the Assistant Collector. 4. Dissatisfied, the petitioners successfully challenged the said order in a writ petition filed in this Court, for the learned Single Judge who dealt with it held that the 'S.S. Maratha Transhipper', being an ocean-going vessel within the meaning of the expression in the Notification No.262 of 1958 and thus wholly ex....
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....vessel, but contending that the vessel was exempt from duty under Notification No. 262 of 1958 being an ocean-going vessel and that the Bill of Entry filed by them be treated as having been filed in 1969, utilized the form of Bill of Entry which was in force in the year 1969, which had already been replaced in the year 1976. However, by his letter dated 17th March, 1987, the second respondent drew the attention of the petitioners to the fact that the Bill of Entry filed by them on 12th March, 1987, was not in the proper format as provided in the Bills of Entry (Forms) Regulation, 1976 and further brought to the petitioners' notice the Public Notice No.72/76 and advised them to file a Bill of Entry in the proper form with full information. He also acceded to the petitioners' request for a personal hearing and fixed it for the 6th April, 1987. Thereafter, onl9th March, 1987, the petitioners approached the second respondent and on being informed about the letter dated 17th March, 1987, copy of which was given to them, got the personal hearing fixed for 6th April preponed to 19th March, 1987. However by letter dated 19th March, 1987, the petitioners sought adjournment of the personal h....
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....ssessed under the respective Bill of Entry, and further that the Bill of Entry filed for clearance of the said wreck would be provisionally assessed to Nil duty on the petitioners furnishing a bond binding themselves to pay the duty leviable on the wreck, if any at the time of the final assessment. 12. Petitioners then filed the present writ petitions. Pending their disposal, this Court by two interim orders both dated 13th April, 1987, restrained the respondents from taking any steps pursuant to the orders dated 26th and 31 st March, 1987, stayed the operation of the detention order dated 9th April, 1987, permitted the removal of the wreck without the demand of any customs duty, additional or auxiliary duty, and further directed the second respondent to assess the wreck to duty on the assumption that the vessel was not exigible for duty. Thereafter, petitioners moved this Court with an application, being the Miscellaneous Civil Application No. 167 of 1987, and obtained another interim order on 12th May, 1987, restraining the respondents from demanding the actual payment of any customs duty on the material of the wreck of the 'S.S. Maratha Transhipper', and by another interim orde....
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.... capable of being used but are used as cargo ships to carry cargo from one Indian port to another or sometimes to foreign ports, necessarily going out on the high seas. They are structurally and technically competent to go on the high seas and they have been certified to be so competent by appropriate maritime authorities. Instead of remaining idle and getting rusty, during off-season, that is when because of inclement monsoon weather topping up operations cannot be done in Mormugao Harbour, the vessels do go out into the open sea sometimes from one Indian port to another and at other times to foreign ports. Of course, even in the course of topping up operations during the fair season, it is necessary for the transhippers to go into the open sea to reach the bulk carriers. But, in our view, these operations do not make these vessels ocean-going vessels when their primary purpose and the purpose for which they were permitted to be purchased and brought to Indian waters, the primary purpose for which they were licensed and the primary purpose for which they are used is to conduct topping up operations in Indian territorial waters and not to serve as ocean-going vessels", and further ....
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....t point, Mr. Setalvad, learned counsel appearing for the petitioners, urged that although the petitioners filed, pursuant to the decision of the Supreme Court in the above referred to Appeal, the Bill of Entry in respect of the 'S.S. Maratha Transhipper' on 12th March, 1987, under their letter dated 11th March, 1987, the fact remains that the aforesaid Bill of Entry was held by the Customs Authorities to be invalid as not filed in the proper form prevailing in the year 1987, and therefore, petitioners were directed to file the Bill of Entry in the form prescribed in the Public Notice No. 72/76. Notwithstanding their disagreement with the view taken by the second respondent, for in their opinion, the Bill of Entry had been flied in the form prevailing in the year 1969, i.e. the year in which the 'S.S. Maratha Transhipper' has been imported into India, and as such in the correct form, petitioners complied with the directions given by the second respondent and filed the Bill of Entry in the form which was in force on 20th March, 1987. The Customs Authorities, the learned counsel contended, did not at all consider the Bill of Entry filed on 12th March, 1987, for assessment of the duty ....
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....tification No. 262 of 1958. 18. Common ground is also that by his letter dated 17th March, 1987, the second respondent after drawing the petitioners' attention to the Bills of Entry (Forms) Regulations, 1976 and to the Public Notice No.72/76, stated that the Bill of Entry filed on 12th March, 1987, was not in the prescribed format and directed the petitioners to file the Bill of Entry in the correct form. He further, acceding to the request of the petitioners, fixed their personal hearing for 6th April, 1987, for the purpose of the assessment of the said vessel to duty. This personal hearing was preponed to 19th March, 1987, at the request of the petitioners, but nonetheless, by their letter dated 19th March, 1987, petitioners sought postponement of the said hearing and on 20th March, 1987, filed the Bill of Entry in the form prevailing in the year 1987 alongwith a covering letter whereby they continued to contend that the Bill of Entry filed by them on 12th March, 1987, was in the correct and proper form and stated that, without prejudice to their contention that the present form was not applicable to their case, they were also filing the Bill of Entry in the prevalent form as di....
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....er their letter dated 11th March, 1987, the Bill of Entry in respect of 'S. S. Maratha Transhipper', the second respondent by his letter dated 17th March, 1987, directed them to file the Bill of Entry in the proper format, since the Bill of Entry presented on 12th March, 1987, was in the old format which was prevalent in the year 1969 and since, according to him, this form was not the prescribed one on 12th March, 1987, in view of the Bills of Entry (Forms) Ragutation, 1976 and the Public Notice No. 72/76. But, as rightly pointed out by Mr. Khandeparcar and Mr. Andhyarujina, the learned counsel appearing for the second respondent and M/s Interdive (Goa), the second respondent nowhere stated in the said letter that the entry of the 'S.S. Maratha Transhipper' made by the petitioners by presenting on 12th March, 1987, the Bill of Entry In the form prevalent in 1969, was invalid, nor did he reject the said Bill of Entry. He merely stated that the said Bill of Entry was not in the correct format and drawing the petitioners' attention to the relevant Rules and Regulations, directed them to file the Bill of Entry in the form prevalent at that time. He further, it is pertinent to note, acc....
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....in the Bills of Entry (Forms) Regulations, 1976, contending that the valuation and the rate of duty should be that prevailing on the date of the importation. It is then stated that, in the circumstances, the Department had three alternatives or courses of action, viz., (1) return the Bill of Entry to the importers, asking them to file it in the prescribed format; (2) accept the Bill of Entry giving number thereto and thereafter complete it by calling for necessary information from the petitioners; and (3) write a letter to the importers calling upon them to file the Bill of Entry in the proper format and to furnish further information, such as regarding insurance policy, etc., for completing the assessment. It is finally suggested in the said note that the third alternative be followed; that a personal hearing could be given to the petitioners and that "the question of filing Bill of Entry in the proper format and submissions of further information should also be dealt with at the time of Personal hearing and the same may be made a part of Order in Original which may be passed by AC(A)". The proposal was accepted and hence, the letter dated 17th March, 1987 above referred to was ad....
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....ill of Entry filed by the petitioners on 12th March, 1987, was invalid nor has he rejected it. It was also seen that the said letter gives a clear indication that he, on the contrary, acted upon it by fixing a date for the personal hearing of the petitioners and initiating thereby the assessment proceedings, although he required the petitioners to file the Bill of Entry in the correct format as they had filed it in a form which was no more in force. This direction to the petitioners to file the Bill of Entry in the proper format amounts, in the circumstances, to a mere directive to correct the Bill of Entry already filed and nothing else, as otherwise the above referred to entry corroborates. That apart, the conduct of the petitioners is significant and it further corroborates that the Bill of Entry filed or presented on 12th March, 1987, was never discarded by the Customs Authorities and was on the contrary, considered and acted upon by them. In fact, when the petitioners presented on 12th March, 1987, the Bill of Entry in respect of 'S.S.Maratha Transhipper', they did it under a covering letter dated 11th March, 1987 and specifically recorded in the said Bill of Entry that it sho....
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....987, and further establishes that they consistently contended that the Bill of Entry presented on 12th March, 1987, was presented in the proper form. The word "also" used in the letter dated 23rd March, 1987 (portion quoted) makes it crystal clear that the petitioners never admitted that the Bill of Entry filed on 12th March, 1987, was not in the proper form and therefore, all the while, they acted upon it and caused the second respondent to do the same. Mr Andhyarujina may have therefore been justifiably tempted to invoke the doctrine of approbation and reprobation and to contend that the petitioners cannot be allowed to blow hot and cold, to approbate and reprobate, by taking now the stand that the Bill of Entry to be considered is the one filed on 20th March, 1987, which is contrary to their consistent stand that the Bill of Entry presented on 12th March, 1987, was correct. But this doctrine does not appear to be attracted in this case, for it requires either benefit to one party or detriment to the other and no such benefit or detriment apparently has resulted to the petitioners or to the Customs Authorities. 23. In this background, there is no manner of doubt that the Bill of....
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....ntry for home consumption or warehousing in the prescribed form", make it appear at the first glance that the filing of the Bill of Entry in the prescribed form Is mandatory and that, therefore, the non-compliance thereof may make the importer liable to the penalty under Section 177 of the Customs Act. This view, however, was forcefully contested and opposed by Mr. Andhyarujina and Mr. Khandeparcar. They indeed contended that Section 46 is merely procedural, it does not levy a duty and is directory in nature as regards the requirement of presentation of a Bill of Entry in the prescribed form. The only mandate incorporated in it is that the importer of any goods "shall make entry thereof and the requirement of making such entry by presenting a Bill of Entry in the prescribed form is merely procedural and directory. It was further urged that the non-compliance with the requirement of Section 46 does not make the importer liable to the penalty under Section 117 as the only consequence thereof is the sale of goods as provided in Section 48 and that, in any event, an irregularity in the matter of form does not vitiate the act and render it illegal and void unless there is a positive pro....
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....d that in Commissioner of Income-Tax, Bengal v. Mahaliram Ramjeedas (AIR 1940 PC 124), it has been held that Section 34 of the Income-tax Act, although a part of a taxing Act, imposed no charge on the subject but dealt merely with the machinery of assessment. Then, quoting the observations of Lord Normand to the effect that in interpreting provisions of this kind, the rule is that the construction should be preferred which makes the machinery workable, the Court approved this view holding that the machinery section should be so construed as to effectuate the charging sections. 26. In Municipal Corporation of Greater Bombay v. The B.R.S. T. Workers Union [1973 (3) SC Cases 546], it has been observed that in State of Uttar Pradesh v. Babu Ram Upadhya (AIR 1961 SC 751), the principles which are to be borne in mind in deciding whether the word "shall" used in a statute makes the provision mandatory or directory, had been expounded. It has been further held that, for ascertaining the real intention of Legislature, the Court, among other things, may consider the nature and the design of the statute, the consequences which would follow from construing it one way or the other and whether ....
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....(AIR 1964 Patna 268), the Patna High Court held that an application for preemption under Section 16(3) cannot be rejected on the ground that information as required by Form LC 13 as to the description of land transferred was not fully but substantially furnished in the application. 31. In Vasudev Ramchandra Shelat v. Pranlal Jayanand Thaker (AIR 1974 SC 1728), Their Lordships of the Supreme Court noted that after all, the observance of a form, whether found in the Transfer of Property Act or in the Companies Act, is meant to serve the needs of the substance of the transaction which, in that particular case, were, undoubtedly, shown to have been completely fulfilled. Therefore, Their Lordships of the Supreme Court made it clear that what matters is not much the form but the substan 32. In C. Buchivenkata Rao v. The Union of India and others [1972 (1) SC 734], a case regarding a mining lease, a question arose about the validity of an application for such lease. Their Lordships, after mentioning that the details mentioned in Rule 27 of the Mining Rules, 1960 are intended for correct identification of the individual to whom the lease is to be granted, the minerals which are to be mi....
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....9 (117)I.T.R. 125], the question as to whether the Tribunal had been justified in that case in setting aside the order of AAC and restoring back the order of the Income-tax Officer with modification that the assessment in question should be treated under Section 144 of the Income-tax Act, 1961, was referred to the High Court. The assessee in that case was an individual and she was required to file her return of income in pursuance of a notice under Section 148 of the 1961 Act as she had not filed her return of income in the usual course under the provisions of the Income-tax Act, 1922. The Income-tax Officer enclosed a blank return in Form No. 2, prescribed under Rule 2 of the Income-tax Rules, 1962. The assessee submitted her return in the said form and the Income-tax Officer completed the assessment under Section 143(3) of the 1961 Act. Then, the assessee filed an appealagainst the order of assessment and contended before the AAC, inter alia, that her return having been filed in the new form, the entire proceedings were illegal and ab initio void because the assessee was required in law to file her return of income in the form as prescribed in Rule 19 of tfie Income-tax Rules, 19....
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....n in Form No.2 could alone be taken as the proper or appropriate return. Relying in the decision of the Privy Council in Malik Damsaz Khan v. Commissioner of Income-tax [1947 (15) ITR 445] and of the Supreme Court in Commissioner of Income-tax v. Ranchhoddas Karsandas [1959 (36) ITR 569], the Division Bench observed that though the assessee in that case had Used a wrong form, it did not mean that the return was non est so that the return which was filed on October 15, 1970, could be treated as the only return filed by the assessee. It was further observed that "In the plethora of forms that are prescribed, sometimes the assessee makes mistakes. We would be under a tyranny of the rules, if we subscribe to the view that an innocuous mistake on the part of the assessee in choosing a wrong form is so serious as to result in the return being treated as a mere scrap of paper and to visit him with a penalty of a substantial amount on the basis that this return solemnly filed is "nonexistent". In the facts of that case where the Income-tax Officer has accepted the return filed in a form which was not prescribed, the Division Bench held that the said return could not have been discarded as ....
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....e said Section 46. This provision of law cleariy requires the importer of any goods, other than those in transit or for transhipment, to make an entry thereof before the competent Customs Officer and further prescribes that such an entry is to be made by pressenting a Bill of Entry for home consumption or warehousing in the prescribed form. It was already seen that the use of the word "shall" may at the first glance make it appear that Section 46 is mandatory in nature and that, as such, the importer of such goods, is bound to make entry thereof by presenting a Bill of Entry in the prescribed form. This, however, does not seem to be correct when the said provision of the Customs Act is read in conjunction with others, particulariywith Section 48. This Section deals with the consequences of the non-compliance with what is laid down in Section 46 and provides that if any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within 45 days from the date of unloading thereof at a customs station or within such further time as the proper Officer may allow or if the title to any imported goods is relinquished, such goods may....
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....= (1987 (11) ECR 53 (Bombay) and in unreported judgment of this Division Bench in Vishal Gomantak's case. Otherwise, that position of law has been made clear by the Full Bench of this Court in Apar Private Ltd. and others v. Union of India and others [1985 (22) ELT 644] and hence, the above question would have been ordinarily answered in the negative without dilating on it at length. But such course of action cannot be adopted in the present case, as Mr. Setalvad with great ingenuity argued that since petitioners had advanced a case that the 'S.S. Maratha Transhipper', being an ocean-going vessel, was exempt from Customs Duty under Notification No.262 of 1958 and sincethe Notification No.133 of 1987 was issued by the Government of India in exercise of the powers conferred by Section 25(1) of the Customs Act and in supersession of the Notification No.262 of 1958, Notification No. 133 of 1987 has to be held as invoked by the petitioners by virtue of Section B of the General Clauses Act. Elaborating the above contention, the learned counsel submitted that the said Notification No. 133 of 1987 was issued in supersession of the Notification No.262 of 1958 and exempts the goods falling u....
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....th March, 1987, that petitioners, for the first time, claimed the exemption under Notification No.133 of 1987 but that too, apparently, on the ground that they had filed the Bill of Entry in the proper form on the 20th March, 1987, when the Notification No.133 of 1987 was already operative. This otherwise is also the stand taken while filing the petition, the question of the Notification No.133 of 1987 to be read in place of Notification No. 262 of 1958 in the Bill of Entry having been raised for the first time by Mr. Setalvad in his rejoinder arguments. In this background, Mr. Khandeparcar is quite right in contending that this new ground is not available to the petitioners to challenge the order of assessment passed on 26th March, 1987. The matter was not at all raised before the second respondent and certainly, as such, the issue did not fall for his determination. That apart, the contention that the Notification No.133 of 1987 has to be read in the Bill of Entry in all places where the Notification No. 262 of 1958 was invoked has no merit. 40. Section 8 of the General Clauses Act deals with the construction of references to repealed enactments. Its sub-section (1) provides: "W....
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.... provision of Section 8(1) of the General Clauses Act was applicable to one order dated 3rd November, 1962 passed by the President, Their Lordships of the Supreme Court observed as under :- "Is the President's Order in question an "instrument" within the meaning of the section? The General Clauses Act does not define the expression "instrument". Therefore, the expression must be taken to have been used in the sense in which it is generally understood in legal parlance. In Stroud's Judicial Dictionary of Words and Phrases (Third Edition, Volume 2, page 1472) 'instrument' is described as follows :- "An 'instrument' is a writing, and generally imports a document of a formal legal kind. Semble, the word may include an Act of Parliament..... .....(11) Conveyancing Act, 1881 (44 and 45 Vict. c.41) S. 2 (xiii), "instrument" includes deed, will, inclosure, award and Act of Parliament...." The expression is also used to signify a deed inter partes or a charter or a record or other writing of a formal nature. But in the context of the General Clauses Act, it has to be understood as including reference to a formal legal writing like an order made under a statute or subordinate legislation o....
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....ustoms for the purposes of break-up of such goods." 42. It crystal clearly follows from the above Notification that the exemption granted is not absolute but is conditional. It indeed exempts from the whole duty of customs and additional duty only those goods which fall under the tariff items mentioned therein, but makes the exemption subject to the conditions referred to in its clauses (a) and (b). This being the nature of the Notification, it would appear that the benefit of the exemption has to be claimed by the concerned party who has to satisfy that he is entitled to it and not excluded from the same by virtue of the occurrence of any of the said two conditions. Tax certainly is a compulsory exaction and unless it is established that it is not payable, it is to be paid. The necessary corollary, therefore, is that he who thinks to be exempt from the payment of a tax, has to daim such exemption. This view gets otherwise support in The Commissioner of Income-tax, Bombay City I v. M/s. Chugandas and Co., Bombay (AIR 1965 SC 568). It was indeed observed by Their Lordships of the Supreme Court while dealing with a submission made before them that it was for the respondent to prove ....
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....s exempt from duty in view of the Notification No.133 of 1987. In the circumstances, petitioners contend that they and M/s. Dempo & Co. Pvt. Ltd., are in all aspects equals and as such, ought to have been treated equally and granted the benefit of the said exemption. In his affidavit-in-reply, this factual background is challenged by the second respondent. He indeed states that petitioners and M/s. Dempo & Co. Pvt. Ltd., are not equally situated, for, on one hand, M/s. Dempo & Co. Pvt. Ltd., unlike the petitioners, filed the Bill of Entry much after the Notification No.133 of 1987 became operative, i.e. somewhere on 20th April, 1987, and on the other, they specifically claimed such exemption. That apart, the 'S.S. Maratha Transhipper' was already being broken up at the time of the making of the assessment order. 44. It was already seen that the petitioners filed the Bill of Entry in respect of the 'S.S. Maratha Transhipper' on the 12th day of March, 1987, and that although another Bill of Entry was filed on 20th March, 1987, the Bill of Entry filed on 12th March, 1987, was acted, upp.p and was never discarded by the second respondent. The Bill of Entry as regards the 'S.S.Maratha ....
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....the quantification of the rate of duty. 45. Undoubtedly, chargeability to duty is to be determined at the point of time the import of goods takes place, i.e. when the goods cross the territorial waters, but the quantification of the rate of duty is fixed by the date of presentation of the Bill of Entry. Therefore, if the goods are not chargeable to duty at the time of import by virtue of an exemption, no duty can be charged at the time of the quantification of the rate of duty when the Bill of Entry is presented. This is the necessary corollary of the exemption, for, if at the time of the import, the goods were not chargeable to duty, there is, in fact, no duty to be quantified. This position of law is now well settled after the decision of the Full Bench of this Court in Apar's case (supra). It is true that the Full Bench did not address itself to the question posed by Mr. Andhyarujina and as such, nothing was said in Apar's case in that connection. But is the learned counsel correct in his submission that the converse is not true and as such, goods which were chargeable at the time of the import do not become non-chargeable by reason of an exemption Notification at the time of t....
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....on between the notification under sub-section (1) of Section 25 of the Customs Act and exemption notification issued under sub-section (2) of Section 25 thereof. Under sub-section (1) the Government may exempt absolutely or subject to conditions goods of any specified description from the whole or any part of duty of customs leviable thereon. Duty is leviable under Section 12 of the Customs Act and not under the Schedules of the Tariff Act." and further that "If the goods are not chargeable to customs duty in view of any of the provisions of the Customs Act or the provisions of any other law, then neither their valuation under Section 14 nor calculation of the duty payable at the rates as mentioned in Section 15 of the Customs Act would be required. Samewuld be the position when a notification wholly exempting the goods from levy of customs duty is issued under sub-section (1) of Section 25 of the Act." The contentions of Mr. Diwan are, therefore, to be fully accepted, being pertinent to note that an exemption granted by the Central Government in exercise of the powers under Section 25 of the Customs Act is in the public interest. 46. Mr. Andhyarujina may be correct when he con....
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....in paragraph 22 of the Petition which reads:- , "If the S.S. Maratha transhipper was exempt from Customs Duly no Customs Duty would be payable in respect of the vessel but duty would be payable on the material removed from the wreck. If, on the other hand, the vessel was exigible to duty as a vessel no customs duty would be payable on the wreck." Then, in paragraph 26, it is stated that the second respondent decided to provisionally assess the wreck to nil rate of duty and in paragraph 29 that, if the second respondent had complied with the orders of the Supreme Court and assessed the wreck at the appropriate rate, petitioners interest under the agreement entered by them with M/s. Interdive (Goa) would have been fully safeguarded. In paragraph 16, Clauses 7 and 11 of the said agreement are quoted. These clauses show that M/s. Interdive (Goa) are liable to pay customs duty and for excise duty upto the maximum of Rupees 90 lakhs in the event of wreck is held exgible IpsuiEsh duty A reference is also made in paragraph 28 to the Interim orders made by the Supreme Court on 20th August, 1986, 2nd November, 1986 and 6th January 1987, pending the disposal of the appeal filed by the petit....
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.... the wreck can be made under Section 21 of the Customs Act. Section 21 provides that all goods, derelict, jotsam, flotsam and wreck brought or coming into India, shall be dealt with as if they were imported into India, unless it be shown to the satisfaction of the proper officer that they are entitled to be admitted duty-free under this Act. It requires no effort to see that the above provision is not at all applicable, for, by no means, it can be said that the 'S.S. Maratha Transhipper' comes within the said Section. The said vessel was not a derelict, jatsam, flotsam or wreck when it was brought into India and. obviously, therefore, the Section is not attracted. The basis of the petition, being thus unsound, make it liable to be dismissed. 49. By an Interim order dated 13th April, 1987, made at the time the Writ Petition No.66 of 1987 was admitted, the second respondent was directed to assess the wreck of the S.S. Maratha Transhipper to customs duty on the assumption that the said vessel is not exigible to duty. Mr. Andhyarujina submitted that this interim order has, undoubtedly, caused injustice to M/s. Interdive (Goa), for, taking advantage of the clauses of the agreement ente....