DHIRAJ LAL H VOHRA Vs. UNION OF INDIA

JUDGEMENT

(1.) These writ petitions under Article 32 raise common question of law arising from same set of facts between the same parties though for different consignments. Hence they are disposed of by common judgment. The petitioner seeks writ of mandamus or any appropriate directions that the component/parts of ball bearings imported from foreign supplier M/s Impex Matel Lucka, Warszawa (Poland) are liable to excise duty prevalent as on 20/02/1989 and to release the goods on payment thereof or in the alternative to declare Section 15 (l) (a) ultra vires Articles 14, 19 (l) (g) , 21, 265 and 300-A of the Constitution. The facts are that the petitioner placed in January-February 1988 an order with the Indian agent of the foreign supplier M/s Impex Matel Lucka, Warszawa, to supply ball bearings and irrevocable letters of credit were opened on 13/07/1988 for Rs. 13,07,830. 00. The foreign supplier shipped the goods in M/s Stefan Czarniecki under bill of lading No. 9 and invoice No. 06/222/71154 dated 31/12/1988. The ship arrived on 20/02/1989 at Madras port and was ready to discharge the cargo. It delivered the import manifest under No. 1 16 on the even date but due to continued strike the cargo could not be handled. On 27/02/1989 the petitioner presented the bill of entry "for clearance of goods for home consumption" and it was entered at No. 012036 which was received in the appraising section of the group on 28/02/1989. The ship arrived into the port and was berthed on 2/03/1989. The entry inward was granted on 2/03/1989. From M 1/03/1989 the rate of excise duty was altered. It was increased at 150 per cent ad valorem plus Rs. 300. 00 per piece for certain sizes and for other sizes duty was raised to 150 per cent ad valorem plus weight-based duty. The result was that pre-tariff duty was Rs. 15,73,611. 05 while as per the new tariff levy effective from March 1, 1.989, the difference came to Rs. 1,80,46,092.64.

(2.) Shri Salve, learned senior counsel for the petitioner contended that the ship had entered into the Indian waters on 20/02/1989 and was ready to discharge the cargo, waiting clearance into the port and due to reasons beyond the control of the ship or the petitioner the goods could not be cleared until 2/03/1989 by which date the rate of levy was materially changed. As the cargo was ready for discharge from the ship from the Indian territorial waters from 20/02/1989 the duty prevailing as on that date shall be the proper duty. Since the petitioner presented the bill of entry for clearance of the goods for home consumption on 27/02/1989 which was received by the appraising section on 28/02/1989, that would be at least the proper date forsection 15 of the Customs Act of 1962 for short 'the Act' prescribes the rate of duty and tariff valuation on imported goods thus:

(3.) It is clear from a bare reading of these relevant provisions that the due date to calculate the rate of duty applicable to any imported goods shall be the rate and valuation in force, in the case of the goods entered for home consumption under Section 46, is the date on which the bill of entry in respect of such goods is presented under that section and in the case of goods cleared from a warehouse under Section 68, the date on which the goods are actually removed from the warehouse. By operation of the proviso if a bill of entry has been presented before the date of entry inwards the bill of entry shall be deemed to have been presented "on the date of such entry inwards" but would be subject to the operation of S. 46 and 31 (1 of the Act. Section 46 (1 provides that the importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form and it may be presented under Ss. (3 thereof at any time after delivery of the import manifest. Section 31 (1 provides that the master of the vessel shall not permit the unloading of any imported goods until an order has been given by the proper officer "granting entry inwards" to such vessel and no order under Ss. (1 shall be given until an import manifest has been delivered or the proper officer is satisfied that there was sufficient cause for not delivering it. Granting entry inwards on delivery of import manifest and the date of arrival of the vessel into port admittedly are on 2/03/1989 and the Master of the vessel made a declaration in this behalf that they would discharge the cargo on 2/03/1989 therefore, the relevant date under Section 15 (1 (a) is the date on which entry , inwards after delivery of import manifest was granted to discharge the cargo for the purpose of the levy of the customs duty and rate of tariff. The contention, therefore that the ship entered Indian territorial waters on 20/02/1989 and was ready to discharge the cargo is not relevant for the purpose of Section 15 (1 read with S. 46 and 31 of the Act. The prior entries regarding presentation of the bill of entry for clearance of the goods on 27/02/1989 and their receipt in the appraising section on 28/02/1989 also are irrelevant. The relevant date to fix the rate of customs duty, therefore, is 2/03/1989. The rate which prevailed as on that date would be the duty to which the goods imported are liable to the impost and the goods would be cleared on its payment in accordance with the rate of levy of customs prevailing as on 2/03/1989.