ASSISTANT COLLECTOR OF CUSTOMS Vs. DUTEX CLOCK COMPANY

JUDGEMENT

(1.) In this appeal with certificate granted by the Calcutta High Court under Art. 133 (1) (b) of the Constitution the only question requiring determination relates to the point of time at which the rate of duty with respect to the goods imported by the respondent, Dutex Clock Company, from Japan is to be fixed. The respondents, a manufacturer of clocks, imported 87 cases of steel strips of Japanese origin for its manufacturing business. Those cases were shipped per steam ship "Narasau Maru", a Japanese vessel which arrived at the Port of Calcutta some time on February 28, 1961. According to the respondent s. s. Narasau Maru began discharging her cargo at about 8.55 p.m. on the same day after completing all customs formalities. All the 87 cases were landed at shed no. 7 C. J. belonging to the Commissioners for the Port of Calcutta and the customs officials assessed the duty on the goods at 10% ad valorem amounting to Rs. 1,934.40 np. The rate of duty applicable to the goods if imported on February 28, 1961 was 10% of the value but as a result of the Finance Act of 1961 the duty was raised to 50% of the value with effect from March 1, 1961. The assessment made at 10% was cancelled on March 8, 1961 and the duty was calculated at 50% ad valorem. The respondent was accordingly called upon to make an extra payment of Rupees 7,737.60 np. The respondent paid this amount under protest and received delivery of the full consignment in March 22, 1961. Having failed to get the refund of the excess amount paid under protest the respondent approached the High Court at Calcutta under Art. 226 of Constitution praying inter alia for a suitable writ or direction for quashing the order of assessment dated March 8, 1961 and the order dated May 29, 1961 rejecting respondent's claim for refund of the excess payment.

(2.) A learned single Judge of Calcutta High Court (B. N. Banerjee J.) after hearing both sides discharged the rule, holding that under Explanation (b) to S. 37, of the Sea Customs Act, 8 of 1878 (hereinafter called the Act) the bill of entry with respect to s. s. Narasau Maru must be deemed to have been delivered on the date of final entry which was made on March 1, 1961 with the result that the duty was correctly assessed at 50% ad valorem under the new tariff rate.

(3.) On Appeal a Division Bench of the Calcutta High Court (G. K. Mitter and B. C. Mitra JJ.) reversed the decision of the learned single Judge and observed that "the bill of entry filed by the Clearing Agents of which the original was before the court shows that it bore date February 28, 1961 and was also signed by the officer of Customs on that date." After considering the material on the record G. K. Mitter J., who wrote the main judgment said: