TaxTMI 
TaxTMI 
1995 (10) TMI 45
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....r yarn booked to be shipped on board the S.S. Neils Maersk. The said shipping bills were for getting entry outwards for the said ship destined for the port of Basrah. The duty payable on the export of the said goods at the then prevailing rate was assessed by the customs authorities. The same was paid by the respondent. The "entry outwards" as envisaged under Section 39 of the Customs Act, 1962 (hereinafter referred to as the Act') was issued and an order permitting the clearance of the loading of the goods for exports as envisaged under Section 51 of the Act was made. 3.For want of space in the said vessel the goods were "shut out". The respondent, however, secured necessary space for exporting these goods by another vessel named S.S. P'Xilas. Respondent accordingly submitted fresh shipping bills on 9th August 1966 for entry outwards' for S.S. P'Xilas. On the basis of a petition made on behalf of the respondent the earlier shipping bills were allowed to be amended enabling the respondent to ship the goods on board the said vessel S.S. P'Xilas. 4.In the meanwhile and before the necessary amendment of the shipping bills the export duty payable on coir yarn was enhanced from 10....
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....me goods even though they got actually exported by the second vessel S.S. P'Xilas. No one has appeared for the respondent to contest these proceedings. 8.Having given our anxious consideration to the contentions canvassed by the learned counsel for the appellants we have reached the conclusion that the order under appeal cannot be sustained. 9.A few relevant provisions of the Act are required to be noted for appreciating the contentions canvassed on behalf of the appellants. Section 2(18) of the Act defines `exports' to mean, `taking out of India to a place outside India'. Section 2(15) defines `duty' to mean, duty of customs leviable under this Act'. Section 12 which is the charging Section lays down by sub-section (1) thereof that except 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 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from India. It becomes, therefore, clear that under the Act customs duty will have to be paid by way of export duty on goods which are exported from India and the t....
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....se goods could not be exported as there was no room in the said vessel with the result that they were brought back to the warehouse and had to await the arrival of the next vessel which could carry them. That event happened on 9th August, 1966 when another vessel S.S. P'Xilas was available and amended shipping bills were again presented by the respondent under Section 50 read with Section 51 and Section 39 of the Act. The entry `outwards' for the said vessel S.S. P'Xilas, therefore, became effective on and from 9th August 1966. Once that happened Section 16 got squarely attracted to the facts of the case. The rate of export duty on these goods had to be the rate in force as prevalent on the day on which the amended shipping bill or a bill on export in respect of such goods was presented under Section 50. As the earlier shipping bills were rectified and amended for permitting the export of the goods in the second ship S.S. P'Xilas only on 9th August, 1966 the rate of duty would be the one that prevailed on 9th August 1966. The proviso to Section 16(1) makes the position clear. It lays down that if the shipping bill has been presented before the date of entry outwards of the vessel b....
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.... as erroneously assumed by the High Court. The assessment of effective export duty was only done once the goods got cleared for effective export via vessel S.S. P'Xilas. The earlier inchoate exercise of an attempt to export them through vessel S.S. Neils Maersk remained an exercise in futility. Consequently the earlier assessment of duty being an ineffective exercise created no binding obligation either on the part of the assessing authorities or on the part of the respondent-exporter. Learned counsel for the appellants was, therefore, right when he contended that the High Court had erred in taking the view that the export duty payable on the goods in question was as per the rate that prevailed at the time when first `entry outwards' was obtained in July 1966 for exporting the goods through vessel S.S. Neils Maersk and not the `entry outwards' as per the amended shipping bills for vessel S.S. P'Xilas in August 1966. It is not in dispute between the parties that if the effective rate of export duty was as prevalent on 9th August, 1966 the respondent will not be entitled to claim any refund of the additional duty of customs paid by him for exporting these goods through the second ves....
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....ms duty of export on the goods in question. Only the subsequent `entry outwards' for vessel S.S. P'Xilas which actually carried these goods out of Indian territorial waters and effected the export of these goods was the only relevant and operative `entry outwards' and the rate of duty prevalent on the date of the said `entry outwards' for vessel S.S. P'Xilas was the only effective rate of duty payable on the export of these goods. Consequently it must be held that the respondent has made out no case for refund of Rs. 4,444.96 for which he lodged the claim. 11.Before parting with this discussion we may refer to a decision of a Constitution Bench of this Court in Gangadhar Narsinghdas Agarwal v. P.S. Thrivikraman & Anr. (AIR 1973 SC 350) wherein proviso to Section 16 of the Act fell for consideration of the Bench. The question before the Bench was whether the rate of customs duty prevalent at the date of entry outwards of the vessel was to be operative or whether the change in the rate of duty by any notification subsequent to the date of entry outwards of the vessel but before the actual arrival of the vessel in the port was to be operative. The Constitution Bench hel....
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....of the 1878 Act the rate of duty was the rate in force when the shipping bill was delivered under Section 137 of the 1878 Act. Section 137 of the 1878 Act provided for clearance of goods for shipment by delivery of shipping bill, payment of duties and the passing of the shipping bill by the Customs Authorities. Section 38 of the 1878 Act had two provisos. Under the first proviso to that old section where the shipment was permitted without a shipping bill, or in anticipation of the delivery of a shipping bill, the rate of duty was to be the rate in force at the time when the shipment of goods commenced. Under the second proviso to Section 38 of the 1878 Act where the shipping bill was in anticipation of the arrival of any vessel or before an order was given for entry outwards of the vessel the shipping bill must be deemed to have been delivered on the date on which that vessel arrived or entry outwards was given whichever was later. Under the provisions of Section 38 of the 1878 Act the Customs Authorities had power to apply the rate in force on the date of the arrival of the vessel. Under Section 16 of the 1962 Act it is not permissible to do so. The statute does not contain such a....