TaxTMI 
TaxTMI 
1978 (12) TMI 55
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....e consumption in respect of Jag Jyoti by the Company. In the said bill of entry the value of Jag Jyoti which was declared was rupees ten lakhs. The import duty prevalent on this date was 32%. On 21st July, 1965 there was an oral agreement between the Company and the petitioners for the sale of the said vessel for the amount of rupees twelve lakhs and on the very next day it appears that the petitioners paid 10% of this amount viz. Rs. 1,20,000/- as earnest money to the Company. On 2nd August, 1965 the Company wrote a letter to the Director General of Shipping requesting permission to sell the said vessel Jag Jyoti to the petitioners. A copy of the said letter is annexed as Exhibit 'A' to the petition. On 20th August, 1965 a notification was published increasing the import duty on ships and vessels to 45% instead of the existing 32%. On 21st August, 1965 an agreement in writing for the sale of Jag Jyoti was executed between the Company and the petitioners. A copy of the said agreement is annexed as Exhibit 'B' to the petition. The agreement recites most of the facts earlier mentioned and under clause 7 thereof the petitioners as the purchasers are responsible for the payment of all ....
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....tatutory requirements had been duly complied with by the Company and the proper rate applicable was that in force on 13th July, 1965. According to the petitioners, therefore, there was no legal basis for the substitution of a different date than the one which had been prescribed by law. It was also pointed out that the Assistant Collector of Customs who made the assessment of duty and allowed amendment of the bill of entry had come to certain conclusion and there was no warrant under the Customs Act for reconsideration of his decision by another officer of the same rank, as this would amount to a correction of the order of the previous officer by another, not of a higher rank, but one of equivalent rank only. 5. The Assistant Collector of Customs gave his decision on 16th March, 1966. Paragraph 1 of the said decision sets out the original demand, para 2 the contentions of the petitioners in reply thereto (though summarised in a somewhat haphazard and unsatisfactory manner) and para 3 contains the decision of the Assistant Collector of Customs. The decision is thoroughly unsatisfactory and may be regarded as totally useless. It does not show whether he had understood any contenti....
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....r they had agreed to purchase the goods, which was on 7th September, 1965, and the rate of duty which they were liable to pay was the one prevailing on the date of the importation which was after this date. According to the Appellate Collector, by this date the rate of duty had been enhanced from originally 32% to 45%. It is important to note that in the appellate order it was not specifically held that the amendment of the bill of entry was improper. But, on the other hand, it appears to be the view of the Appellate Collector that the petitioners became liable to pay extra duty by reason of the amendment, and this is regarded as a consequence of the amendment. According to the Appellate Collector, there was no decision of the previous Assistant Collector to assess the duty at the lower rate and the assessment was a mistake which could be corrected subsequently by an officer of equal rank. 7. The petitioners carried the matter in revision before the Government of India, where the matter was considered by the Joint Secretary to the Government of India. One of the contentions urged on behalf of the petitioners was that as the amendment had been allowed to be carried out in the nam....
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....s, mis-applied them, and not properly appreciated or understood the petitioners' contentions. The petitioners have accordingly prayed that the orders be quashed and the amount of alleged short-levy paid under protest be refunded to the petitioners. It is in these circumstances that the statutory provisions will now be required to be considered and these are the relevant provisions of the Customs Act, 1962. 9. We have in the first place to consider the definitions of the terms "import" and "importer" to be found in Section 2(23) and 2(26) respectively of the said Act. It may be mentioned that under Section 2(22) 'goods' would include vessels and under Section 2(25) the definition of "imported goods" would include the said vessel which was brought into India from a place outside India for the purpose of being scrapped. The definitions of "import" and "importer" to be found in the two sub-sections of Section 2 may be fully set out. "2(25). "import", with its grammatical variations and cognate expressions, means bringing into India from a place outside India;" "2(26). "importer", in relation to any goods at any time between their importation and the time when they are cleared ....
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....bsp; … … … … … (3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report as the case may be : Provided that the Collector of Customs may in any special circumstances permit a bill of entry to be presented before the delivery of such manifest or report. (4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. … … … … 13. We now have to turn to certain sections permitting a....
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....place when the goods are brought into the territorial waters of India. The Division Bench observed that there was nothing in the Customs Act, 1962, to indicate that the chargeability is postponed until a bill of entry is presented. However, it was made clear by the Court that there is a clear distinction between the concept of chargeability in respect of customs duty and the concept of assessment or quantification of the amount payable by way of customs duty. 17. A number of contentions were urged by counsel on behalf of the petitioners which are now required to be considered. It was submitted that the original memorandum under which the petitioners were required to show cause in respect of the alleged short-levy was beyond the time prescribed by Section 28. I found no substance in the said plea as it appeared clear to me that in the circumstances of the case the show-cause memo was issued within the permitted period of six months, which, has to be considered to commence at the earliest from 7th September, 1965 when duty was assessed at the rate of 32 per cent to Rs. 3,75,537.40. It was also contended that the officer who issued the show-cause memo was not authorised to recover ....
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....er importer from subscribing to the declaration. Accordingly in the view of the learned Joint Secretary, there was no valid entry documents in the eye of law and, therefore, the levy was required to be determined under Section 15(1)(c). 20. Now, every step of this reasoning process can be exposed as being based on a fallacious understanding of the law. On 7th September, 1965 the Assistant Collector, who was the proper officer, had in his discretion authorised the amendment of the bill of entry. As long as that amendment stood and was not set aside by a higher officer having appellate authority over that officer or by the Board under Section 130 (to give only an instance, which section gives to the Board the revisional powers to check the legality or propriety of all decisions of all officers of Customs), the bill of entry as amended was required to be considered and as long as there was a bill of entry as amended, in my opinion, it was not permissible for any authority, even though higher in status than the Assistant Collector, to consider the bill of entry as non est, improper, and to proceed to consider the goods as imported otherwise than after the presentation of a bill of e....
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....o-called mistakes in a manner which is not permitted to it. 21. This brings us to a consideration of what is contended for in paragraph 12 of the revisional order. What has been observed therein is that after amendment the bill of entry must be regarded as a new bill of entry and this is also by an involved piece of reasoning, a twisted one, which is not supported by any principles applicable to amendment of documents. It is well settled that normally an amendment relates back to its original date. The question here is not whether the officer ought to have allowed the amendment, but, does the amendment which has been allowed convert the bill of entry into a new one presented on the date of the amendment. It was open to the officer concerned to have refused the application for substitution of the name of the petitioners for that of the Company. If he had done so, there were a number of options available to the petitioners. They could have asked the Company to clear the goods under the unamended bill of entry and then taken delivery of the vessel; they could have presented a fresh bill of entry, in which case they might be required to pay duty at the date on which the fresh bill o....
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....lls Ltd., 53 Bom. L.R. 82 at Page 85. The aforesaid Full Bench decision has referred to an English case viz., Craddock Brothers v. Hunt, (1923) 2 Chapter 136, where the principle has been extracted at pages 151 and 160 of the report; at page 160 we have the following observations : "It seems to me that, on principle, if an instrument of whatever nature is rectified, it ought to be treated as if the necessary alteration had actually been made with the pen and had been part of the document at the date of its completion. (italics supplied). 23. Mr. Nain also referred me to the provisions in the Code of Civil Procedure pertaining to amendment of pleadings and submitted that ordinarily all amendments would relate back to the date on which the original pleading was presented to the Court. It was pointed out that where a party was substituted or added, there was a special provision in the Limitation Act to counteract this ordinary result and that where there was no such provision the ordinary result must follow, which ordinary result may be summarised in this way that all amendments would relate back to the original date. 24. Mr. Nain also submitted that even under the agreement ....
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....e cleared the goods, although by the date of clearance they might have become liable for payment of duty. This position hag been resisted by counsel on behalf of the respondents. As stated earlier, in the view that I have taken it is unnecessary to consider this position although there is much to be said for the submission made by Mr. Nair. 26. Mr. Joshi in his arguments relied very strongly on the requirements as to the bill of entry to be found in sub-section (4) of Section 46 which provides for a declaration to be subscribed by the importer. According to him, the petitioners were the importers falling within the definition of the term in Section 2(26) and it was they who were required to make a declaration at the foot of the bill of entry, which was not made by them and, therefore, it could be contended that there was no bill of entry. Alternatively he submitted that since the name of the importer has been altered, the bill of entry as altered must be regarded as one having been presented on 7th September, 1965 and, if it be so regarded, then duty was required to be levied at the rate of 45% and the demand on the basis of short-levy was fully justified. Mr. Joshi forgets that....