Gujarat High Court
Viterra India Private Ltd vs Union Of India on 31 July, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4510 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 4510 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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VITERRA INDIA PRIVATE LTD.
Versus
UNION OF INDIA & ORS.
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Appearance:
MR. SAURABH SOPARKAR, SR. ADV. WITH PRIYAL M PARIKH(7593) for
the Petitioner(s) No. 1
ADVOCATE NOTICE NOT RECD BACK for the Respondent(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 2,3,4
RULE SERVED for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 31/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)
1. Heard learned Senior Counsel Mr. Saurabh Soparkar with learned advocate Ms. Priyal Parikh for the petitioners and learned advocate Mr. Ankit Shah for the respondents. Page 1 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025
NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined
2. By way of the present petition, the petitioners have prayed for following prayers:
"(a) That this Hon'ble Court be pleased to issue a writ in the nature of mandamus or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioners case and after going into the validity and legality thereof to quash and set aside the cancellation of Bills of Entry No. 2166567, 2169755, 2166682, 2166860, 2166942, 2167181 and 2167350 dated 20.06.2017;
(b) Allow the amendment of the IGM No. 2167473 dated 17.06.2017 to reflect the Petitioners as the new buyers of the consignment in question;
(c) In the alternative, if the Petitioners be permitted to clear the consignment under the new Bill of Entry No.5335128 dated 23.02.2018 by applying the rate of duty applicable as on the date of import, i.e. 20.06.2017;
(d) As an interim relief, permit provisional clearance of the 32250 MT of yellow peas on provisional basis upon execution of a bond Page 2 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined for the full value of the goods or subject to such conditions as the Hon'ble Court may deem fit;"
3. The facts leading to the filing of the present petition are as under:
3.1 The petitioner is a Private Limited Company, inter alia, engaged in the trading of agricultural goods such as pulses, grain, wheat, etc. 3.2 Respondent No. 5 is the shipping agent who has filed IGM No.2167473 dated 17.06.2017 under the provisions of Customs Act, 1962 and who has filed the application dated 4.12.2017 for amendment of the IGM, to amend the name of the consignee from 'Sharp Corp Ltd to that of 'Agricore Commodities Pvt. Ltd.
3.3 It is the case of the petitioners that they are the new and bonafide buyers of the Page 3 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined goods covered imported vide Bills of Entry No. 2166567, 2169755, 2166682, 2166860, 2166942, 2167181 and 2167350, all dated 20.06.2017 (hereinafter referred to as "the Bills of Entry dated 20.06.2017"), after their importation. Therefore, the Petitioners qualify as interested parties in the goods imported vide the aforementioned Bills of Entry dated 20.06.2017. The Importer has been a long-standing client of the Seller and they have been commercially involved for the last 9-10 years.
3.4 The petitioners are filing the present Special Civil Application against the arbitrary cancellation of the Bills of Entry dated 20.06.2017 at the instance of the Respondent No.2, instead of amending the bills of entry to substitute the name of the petitioners as the importer. The petitioners Page 4 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined are also challenging the action of the respondents in directing the petitioners to file the fresh bills of entry for the goods covered by the earlier bills of entry dated 20.6.2017 and the application of the new rate of duty as on the date of filing of the fresh bill of entry, i.e. 23.02.2018 as mentioned in their letter dated 06.03.2018.
3.5 Vide the above referred Bills of Entry dated 20.06.2017, Sharp Corp. Ltd.
(hereinafter referred to as "Importer"] imported Canadian whole yellow peas from Glencore Agriculture BV, Netherlands (hereinafter referred to as the "Seller"], in terms of a contract dated 20.01.2017, on CIF basis.
3.6 It is the case of the petitioners that pursuant to the contract entered into between Page 5 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined the Importer and the Seller, the vessel, 'RB Leah' was carrying 21000 MTS of lentils and 47250 MTS of yellow peas as per the terms of the contract.
3.7. Because of their previous relationship, the payment term as between the Importer and the Seller was Cash Against Delivery (CAD). According to this term, payment was to be made to the Seller five days prior to the arrival of the vessel at Mundra port. However, prior to and even post the arrival of the vessel, the Importer failed to make the payment for the goods as per the contract and an extension of time for making the payment was sought till the end of July 2017.
3.8 It is the case of the petitioners that as the Importer could not take delivery of the cargo, they requested the Seller to allow Page 6 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined discharge of the goods from the vessel against a letter of indemnity dated 23.6.2017, so as to avoid demurrage. Because of the business relationship, the same was agreed to by the Seller.
3.9. The goods covered by the aforesaid bills of entry are classifiable under Heading 07.13 (Tariff Item 01731000) of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as the "Customs Tariff"). As on the date of importation, i.e. 17.06.2017 or on the date of filing of bills of entry (namely 20.6.2017), yellow peas were exempt wholly and unconditionally from the payment of Basic Customs Duty (BCD) by virtue of S.No.21 of Notification No. 12/2012-Cus dated 17.03.12. Further, no excise duty was leviable on goods falling under Heading 07.13. Consequently, no Additional Duty of Customs (CVD) was leviable Page 7 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined on the goods falling under Heading 07.13 and imported into India. Special Additional Duty (SAD) leviable under Section 3(5) of the Customs Tariff Act too was exempt in terms of S. No.22 of Notification No.21/2012-Cus. dated 17.3.2012. Therefore, no duty of customs was leviable on the said imports at the time of filing the Bills of Entry i.e. on 20.06.17 by the Importer. The goods are also freely importable and there is no restriction on the importation of these goods into India. The only requirement is to produce a phytosanitary certificate under the Plant Quarantine Regulations for ensuring that the consignments are free from infestation. At the time of importation too, these certificates were available in respect of the consignment in question.
3.10 It is further the case of the Page 8 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined petitioners that accordingly, out of the whole consignment which was imported by the vessel RB Leah, 21000 MTS of lentils and 15000 MTS of yellow peas were cleared for home consumption by the Importer upon completion of all the required formalities and paperwork. No duty was paid on the subject goods.
3.11. The remaining 32250 MTS of yellow peas covered by the subject Bills of Entry dated 20.06.2017 were not cleared for home consumption. The present petition pertains to this portion of the consignment which was imported into India vide the vessel R.B. Leah (same vessel as above).
3.12. Since it was understood as between the parties that the Importer would not be able to fulfill the contract, a letter dated 15.09.2017 was also filed by the Importer with Page 9 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined the Deputy Commissioner of Customs, Mundra. In the letter dated 15.09.2017 (filed on 4.12.2017) by which no objection was given by the original importer, it was categorically mentioned by the Importer that they have no objection to the IGM and the Bill of Entry being amended to indicate the new buyer. 3.13 It is the case of the petitioners that the Petitioners and the Seller are related parties. Based on negotiations and after taking into consideration the prevailing market demand for peas and other factors, a Contract dated 03.10.2017 was entered into between the Petitioners and the Seller for the sale of 32250 MT of the yellow peas. 3.14 The shipping line was reluctant to issue a revised Bill of lading in the name of the Page 10 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined Petitioners who could not have obtained delivery of the cargo based on the non- negotiable bill of lading which had been earlier issued to the Importer. Finally, after a month of persuasion, the shipping line agreed on 10.11.2017 to issue a new Bill of lading showing the Petitioners as the consignee of the goods in question. 3.15. Meanwhile, the taxation regime in India saw the implementation of the Goods & Services Tax (GST).
3.16 In November 2017, in terms of S.No.20A of Notification No. 84/2017-Cus. dated 08.11.17 BCD on the imported goods came to be imposed at the rate of 50%. However, the Integrated Goods and Services Tax (IGST) was still exempt vide S.No.45 of the Notification No. 2/2017- Integrated Tax (Rate) dated 28.06.17. Page 11 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025
NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined 3.17 It is the case of the petitioner that by way of communication dated 5.10.2017, the Deputy Commissioner of Customs was informed about failure of importer to take the delivery of consignment covered by Bill of Entry dated 20.6.2017. It was, therefore, intimated to the authority that 32250 MT of goods have, therefore, been sold to the petitioners. In wake of such factual changes, a request was made for amending the IGM so as to enable consequential amendment to the Bills of Entry. Pursuant thereto, an application was made by the petitioner qua amendment of Import General Manifest (IGM). For amendment of IGM, various communications were addressed by the petitioners. It is the case of the petitioners that despite making regular follow-ups, there was no response from the respondent for amendment of IGM. Therefore, left with no Page 12 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined alternative, petitioner filed a fresh Bill of Entry covering the consignment in question, under protest. Petitioners had filed new Bill of Entry on 22.2.2018 under protest. 3.18 It is the case of the petitioners that fresh Bill of Entry dated 23.2.2018 was being assessed to duty at rate applicable on the date of filing of Bill of Entry, treating them to be fresh imposed. Therefore, the petitioners communicated to the respondent, requesting for clearance of cargo by applying the rate of duty as on 20.6.2017 as the goods were imported on the said date. However, no response was received from the respondent authorities to the petitioners. Since no response was forthcoming from the respondent and taking into account the nature of goods in question, petitioners had preferred the Page 13 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined present writ-petition on 7.3.2018. Thereafter, during pendency of the present writ-petition, a communication was addressed by the respondent authorities on 8.3.2018, informing the petitioners that the consignment in question covered by fresh Bill of Entry dated 23.2.2018 will have to be cleared at the rates as applicable on date of filing the Bill of Entry. This is the core controversy in the present writ petition.
4. Mr. Saurabh Soparkar, learned Senior Counsel submitted that the cancellation of Bill of Entry No. 2166567 and other Bill of Entries dated 20.6.2017 by the respondent is perverse and not in accordance with the provisions of Customs Act and in gross violation of principles of natural justice. The respondent had cancelled the Bill of Entry Page 14 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined without intimation to the petitioners who are interested parties in the subject matter.
5. It was further submitted by Mr. Soparkar that the provisions of Customs Act or Rules does not require the Bills of Entry to be cancelled for getting the IGM amended. The petitioners had requested for amendment of IGM without resorting to the cancellation of Bill of Entry. By cancelling the subject Bill of Entry, the respondent has not only acted beyond the authority granted to them, but have violated principles of natural justice. It was further submitted that numerous Circulars have been issued containing instructions of incorrect and incomplete IGMs. Circular No.45/2005-Customs clarified the issue of major amendments. If the proper officer is satisfied that import manifest is incorrect or incomplete and there was no fraudulent Page 15 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined intention then he may permit to amend or supplement it. Therefore, the adjudication would only arise if there was fraudulent intention. In the present case, the name of the importer is sought to be amended in the IGM. It will not tantamount to major amendment and it should be permitted to be done without adjudication if there is no fraudulent intention. It was further submitted that reason behind amendment of IGM is only on account of commercial reasons. The purpose was to reflect the change in ownership of the goods so as to allow the true owner of the goods to take possession. The amendment in IGM would not result into revenue implications.
6. It was further submitted by Mr. Soparkar, learned Senior Counsel that Section 15 of the Customs Act provides for mechanism for Page 16 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined determining applicable rates of duty on imported goods. In the instant case, the Bill of Entry for home consumption was filed in 2017. Therefore, in terms of Section 15 of the Customs Act, the date of duty would be 20.6.2017. Therefore, according to Mr. Soparkar, prayers as made in the present writ petition ought to be granted.
7. Per contra, Mr. Ankit Shah, learned advocate for the respondent defended the action of the respondent authority and submitted that the action taken by the respondent authorities are just and proper and the prayers made in the writ petition are frivolous and are required to be dismissed.
8. After hearing the arguments canvassed by learned advocates for the respective parties, Page 17 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined a short question that arises for consideration is with regard to rate of duty for goods for home consumption vis-a-vis the date of Bill of Entries. It is not in dispute that the original Bill of Entry was filed on 20.6.2017. Thereafter, due to inability of the importer to clear the goods, the present petitioner had entered the frame.
9. Section 15 of the Customs Act, 1962 discusses about the determination of rate of duty. For ready reference, Section 15 is reproduced hereinbelow:
15. 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 imported goods, shall be the rate and valuation in force,--
(a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such Page 18 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined goods is presented under that section;
(b) in the case of goods cleared from a warehouse under section 68, on the date on 3 which [a bill of entry for home consumption in respect of such goods is presented under that section];
(c) in the case of any other goods, on the date of payment of duty:
[Provided that if a bill of entry has been presented before the date of entry inwards of 5 the vessel or the arrival of the aircraft [or the vehicle] by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be.
9.1 Section 46 of the Customs Act deals with goods entered for home consumption. Section 46 is reproduced hereinbelow:
"Section 46. Entry of goods on importation.
(1) The importer of any goods, other than Page 19 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined goods intended for transit or transhipment, shall make entry thereof by presenting 2 [electronically] [on the customs automated system] to the proper officer a bill of entry 3 for home consumption or warehousing [pin such form and manner as may be prescribed]:
[Provided that the Principal Commissioner of Customs or Commissioner of Customs] may, in cases cases where it is not feasible to make entry by presenting electronically on the customs automated system], allow an entry to be presented in any other manner:
Provided further that] if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same.Page 20 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025
NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor.
[(3) The importer shall present the bill of 7 entry under sub-section (1) [before the end of the day (including holidays) preceding the day] on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing:
[Provided that the Board may, in such cases as it may deem fit, prescribe different time limits for presentation of the bill of entry, which shall not be later than the end of the day of such arrival:
Provided further that] a bill of entry may be presented [at any time not exceeding thirty days prior to] the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India:Page 21 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025
NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined [Provided also that] where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed.] (4) The importer while presenting a bill of 11 entry shall *** 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 12 officer the invoice, if any, [and such other documents relating to the imported goods as may be prescribed].
[(4A) The importer who presents a bill of entry shall ensure the following, namely:--
(a) the accuracy and completeness of the information given therein;
(b) the authenticity and validity of any document supporting it; and
(c) compliance with the restriction or prohibition, if any, relating to the goods Page 22 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined under this Act or under any other law for the time being in force.] (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa.
9.2 Section 2(26) defines an importer and the same is reproduced hereinbelow:
"2(26) Importer, in relation to any goods at any time between their importation and the time when they are cleared for home 20 consumption, includes [any owner, beneficial owner] or any person holding himself out to be the importer. "
9.3 Under Section 46 of the Customs Act, the importer of the goods makes entry by presenting Bill of Entry for home consumption of warehouses in prescribed form. When such Page 23 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined Bill of Entry for home consumption is filed, the date of presentation is relevant for fixing the rate of duty of goods imported. It is not in dispute that in the instant case, the Bill of Entry was filed on 20.6.2017. However, subsequently the persons who presented the Bill of Entry did not clear the goods. It was subsequent to the presentation of the Bill of Entry, the ownership of the goods changed to the present petitioners. Present petitioner became importer as per Section 26 of the Customs Act and, therefore, he was directed to file a fresh Bill of Entry which the petitioner did under protest. Therefore, the core question would be the rate of duty applicable on the relevant date of Bill of Entry.
9.4 Section 12 of the Customs Act provides Page 24 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined that the custom duty shall be levied at such rates as may be specified under the Customs Tariff Act, 1975. The rate of duty specified under Section 15 and the valuation of the goods entered for home consumption is prescribed under Section 46. Therefore, the question would be the rate of duty applicable to an imported goods and the rate of valuation in force. For applicability of the duty, the important aspect is that the date on which the goods entered for home consumption as per Section 46 and the date on which the Bill of Entry was presented.
10. It would not be material if the ownership changes hands thereafter and goods were subject to ownership to some another person. The rate of duty would be applicable on the date of presentation of the first Bill of Entry when it was filed for home consumption. Page 25 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025
NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined In the facts of the case, the Bill of Entry was filed on 20.6.2017 and thereafter the ownership was changed in the name of the petitioner. Therefore, the rate of duty would be applicable on the date when goods entered for home consumption and the date of Bill of Entry presented under Section 46 of the Act. This issue has been covered by decision of Bombay High Court in case of Miss Anjali S. Lunkad v. Union of India and another, reported in 1990 SCC OnLIne Bom 84. Paragraphs No. 15, 16, 17 and 18 of the said decision read as under:
"15. Under Section 2(26) an 'importer' in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer. An "importer", therefore, as per this definition would include any person who becomes the owner of the goods between the time of their importation and the time Page 26 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined when they are cleared for home consumption. This definition is undoubtedly wide enough to include the petitioners in these writ petitions also.
16. What is important, however, is that the duty of customs is levied not on the importer but on the goods imported into or exported from India. Section 12 of the Customs Act, 1962 provided that duties of Customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or any other law for the time being in force, on goods imported into, or exported from, India. The rate of duty is specified under Sec.15 of the Customs Act. Under Sec.15(1) the rate of duty applicable to any imported goods shall be, inter alia, the rate and valuation in force, (a) in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that section. The rest of Section 15 is not relevant for the present purpose.
17. Under Section 46 of the Customs Act, the importer of any goods shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or Page 27 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined warehousing in the prescribed form. In view of this section, therefore, after the goods are imported into India the importer has to file a bill of entry either for home consumption or for warehousing in the prescribed form to the proper officer. When such bill of entry for home consumption is filed, the date of presentation of the bill of entry is the date which is relevant for fixing the rate of duty on the goods so imported.
18. In the present case in respect of both writ petitions Nos. 719/90 and 71/90 the bills of entry were presented by the original importers prior to the date of the new notification which came into effect from 1st November 1989. It is true that these bills of entry were not presented by the present petitioners. They were presented by the original importers. But this can make no difference to the determination of the rate of duty. At the time when these bills of entry were presented, the person who presented these bills of entry was the "importer" within the definition of Section 2(26) of the Customs Act. It was only subsequent to the presentation of the bill of Page 28 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined entry that the ownership of the goods changed. The present petitioners became the owners of these goods and therefore became the 'importer' within the meaning of the term under Section 2(26) of the Customs Act after the presentation of the bill of entry. They are, therefore, entitled to have their names substituted in the bills of entry so presented as also to have the Import General Manifest amended to show them as importers. But, for determining the rate of duty, the relevant date is the date on which the bill of entry was presented for home consumption by the importer under Sec. 46 read with Sec. 15(1). Valid bills of entry for home consumption in respect of these goods were presented by persons who were then the importers, prior to 1st November 1989. The rate of duty, therefore, is the duty prevailing prior to 1st November 1989."
11. In view of above observations and considering the facts of the case, present petition succeeds. The order for cancellation of Bills of Entry Nos. 2166567, 2169755, 2166682, 2166860, 2166942, 2167181 and Page 29 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025 NEUTRAL CITATION C/SCA/4510/2018 JUDGMENT DATED: 31/07/2025 undefined 2167350 dated 20.06.2017 are hereby quashed and set-aside and the respondents are directed to apply rate of custom duty applicable as on the date of import i.e. 20.6.2017.
12. In view of the foregoing reasons, the present petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
13. The connected Civil Application also stands disposed of.
(BHARGAV D. KARIA, J) (PRANAV TRIVEDI,J) SAJ GEORGE Page 30 of 30 Uploaded by SAJ GEORGE(HC01069) on Sat Aug 02 2025 Downloaded on : Mon Aug 04 21:37:28 IST 2025