R. Shanti Lal & Co. And Anr. vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 1483 Del

JUDGMENT

S.B. Sinha, C.J.

1. The short question which arises for consideration in this application is as regards the rate of duty payable by the petitioner.

2. The petitioners are carrying on the business of sale and purchase of edible oils wherefor they import edible oils from foreign countries. The Petitioner imported RBD Palmolein wherefor bill of entry for home consumption was issued on 25th July 1981. In the said bill of entry, the rate of excise duty was shown as 42.6%. The ship carrying the said goods started form Singapore on 11th July 1981 and entered the Indian territory on 16th July 1981. The vessel reached Bombay on 25th July 1981 and the bill of entry, as noticed hereinbefore, was lodged.

3. The petitioner, however, was charged with a duty of 125% which became applicable w.e.f. 26th July 1981. The petitioner prayed for the following reliefs:

"(a) Declare that the aforesaid ordinance dated 26th July, 1981 (Annexure VI) is illegal and ultra vires of the Constitution and the same be quashed;

(b) Issue a Writ of Mandamus or any other appropriate writ, direction or order against the respondents to treat the petitioners and STC equally and to charge petitioners customs duty @ 5% only; and not to charge additional customs duty and auxillary duty from the petitioners;

(c) Issue a writ of Certiorari or any other appropriate writ, direction or order quashing the notifications dated 18.7.1981 and 26.7.1981, Annexures V, VII and VIII of the writ petition,

(d) Alternatively to issue a Writ of Mandamus or any other appropriate writ, direction or order directing the respondents to charge customs duty at not more than 12.5% ad valorem or in any case not more than 42.5% ad valorem, and

(e) Issue a Writ of Prohibition or any other appropriate writ, direction or order against the respondents and its officers or agents from charging more than 5% duty from the petitioners and from charging additional customs duty and auxillary duty.

And pass such other or further order or orders as the petitioners may found entitled to in the circumstances of the case and in the interest of justice."

4. The short contention raised in this writ petition is as regards the rate of duty.

5. In an affidavit filed on 28th January 1993, the second petitioner herein stated:

"I, Rajni Kant Ratilal Mehta S/o late Shri Ratialal Mehta, age about 49 years, occupation business, R/o Bombay, presently at Delhi, do hereby solemnly affirm and state as hereunder:-

1. I am a partner in the petitioner firm and am conversant with the facts of the case. As such I am competent to swear this affidavit.

2. I am filing herewith a true photocopy of the letter dated 4.8.1981 from the Shipping Agent Transocean Shipping Agency (P) Ltd., Bombay certifying that vessel M.V. "YEMELYAN YAROSLAVSKIY" carrying RBD Palmoliev reached Madras Port on 17.7.81 and the same was manifested under item No. 82 prior entry 834 dated 17th July, 1981, as Ann. A. I am also filing a photocopy of the Bill of Entry No. 408779 evidencing that the Bill of Entry in respect of the aforesaid vessel was registered at the Bombay Port on 25.7.1981 as Annex. B."

6. A certificate dated 4th August 1981 was also produced before the respondent which is to the following effect:

"This is to certify that we have manifested under Item No. 82 prior entry 834 dated 17th July, 81 vessel M.V. "YEMELYAN YAROSLAVSKIY" one lot of loose R.B.D. Palm Olein 261.9644 M. Tons shipment from Penang to be discharged at Bombay.

According to manifest shippers are M/s. Gold Agricultural Oils Sdn. Berhad, Butterworth Malayan and Consignees 'To Order'. The vessel is presently in Madras due Bombay 14th August, 1981."

7. Although the learned counsel for the petitioner has raised many contentions in support of the writ petition, we are of the opinion that the writ petition can be disposed of on a short question. Chapter V of the Customs Act, 1962 deals with levy of an exemption from customs duty. Section 12 of the Act reads thus:

"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 for the time being in force, on goods imported into, or exported from, India.

(2) The provisions of Sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government."

8. Section 14 of the said Act provides for valuation of goods for purposes of assessment. Section 15 specifies the date for determination of rate of duty and tariff valuation of imported goods, which is in the following terms:

"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 goods is presented under that section;

(b) in the case of goods cleared from a warehouse under Section 68, on the date on which the goods are actually removed from the warehouse;

(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 the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.

(2) The provisions of this section shall not apply to baggage and goods imported by post."

9. It is not in dispute that the goods entered into this country for home consumption. The purpose for which the imported requirement was to be put to use namely home consumption, had also been stated in the bill of entry. Section 46 of the Act reads thus:

"46. Entry of goods on importation.-

(1) The importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form:

Provided 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.

(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) 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 report.

Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel by which the goods have been shipped for importation into India is expected to arrive within a week from the date of such presentation.

(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.

(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."

10. Keeping in view the fact that in the bill of entry, the petitioner had categorically stated that the goods were imported for home consumption, there cannot be any doubt that in the instant case, Clause (a) of Sub-section (1) of Section 15 would be attracted and in that view of the matter, the duty which was payable on the date of presentation of the bill of entry namely 25th July 1981 shall be relevant for the purpose of determination of the rate of duty.

11. In this view of the matter, we are of the opinion that the respondents committed an illegality in charging the enhanced excise duty from the petitioner.

12. For the reasons afore-mentioned, this writ petition is allowed to the afore-mentioned extent, however, without any orders as to costs.