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TMI Blog1986 (5) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... a revision application was filed before the Government of India though the impugned order had disposed of by a common order three appeals against three orders in original. To comply with the practice and procedure followed in the Tribunal, two supplementary appeals Nos. 207/86-C and 208/86-C have been filed and with respect to these appeals applications for condonation of delay made. On the date of hearing 6-2-86, delay in respect of filing these two supplementary appeals was ordered to be condoned and the three appeals taken up for hearing on merits. 3. The three consignments in respect of which claims for refund were made came through two ships - State of Kerala and Pearl Island . These ships arrived in the territorial waters of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een overruled by Supreme Court in Prakash Cotton Mills Ltd. v. B. Sen Others case 1979 E.L.T. (J 241) and as per section 15(l)(b) read with section 68 of the Customs Act, 1962, the rate of duty would be the one in force when the goods were actually removed from the warehouse. The order was upheld in appeal by Collector of Customs (Appeals) Bombay by his order dated 17-3-1982. Hence these appeals. 5. At the hearing of the appeal on 6-2-1982 Shri V. Lakshmikumaran, Advocate representing the appellants admitted that similar appeals of the appellants had been dismissed by the Tribunal but in view of the very recent decision of the Bombay High Court in Apar Private Ltd. Others v. Union of India Others - 1985 (22) E.L.T. 644 (Bom.), the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be leviable thereon even if such exemption were withdrawn under section 25(1) of the Customs Act before the goods are released for home consumption. Even if such goods were not exempt from the levy of countervailing duty under section 2A of the Tariff Act or additional duty under section 2 of the Customs Tariff Act, they would still be treated as goods wholly exempt from customs duty for the purpose of the levy of basic customs duty. Only if the goods were chargeable to some basic customs duty under the Customs Act, when they entered the territorial waters of India, then the rates in force at the time when the bill of entry is presented or at the time when the goods are sought to be cleared for home consumption, as the case may be, would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. If on that date they were wholly exempt from the levy of basic customs duty they would not be liable for such duty even if they were liable for levy of additional duty. Withdrawal of exemption from levy of additional duty will not affect the levy of basic customs duty. Likewise, withdrawal of exemption from the charge of basic customs duty after the goods are imported and before they are cleared for home consumption will not affect levy of additional duty. If the goods were wholly exempt from the levy of customs duty on the date when they were imported, it would not make any difference to our answer to the second question even if such goods were chargeable to countervailing duty or additional duty on that date and the notification exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which the imported article belongs. About Shri V. Lakshmi kumaran s strong reliance of observation of Bombay High Court in Apar Private Ltd. Others (supra), it was submitted that the decision had not taken note of the Supreme Court decision in Khandelwal Metal Engineering Works Another etc., 1985 (20) E.L.T. 222 (S.C.), presumably because it was not available at the time of arguments in that case. In view of this, Supreme Court decision, the distinction sought to be made by the Bombay High Court between additional duty and the basic customs duty could not be justified. If the additional duty according to the Supreme Court decision be held to be customs duty even on the reasoning adopted by the Bombay High Court, the appellants coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt decision in Khandelwal Metal Engineering Works (supra) holding that additional duty mentioned in section 3(1) of the Customs Tariff Act, 1975 partakes of the same character as the customs duty and is not countervailing duty, would have to be preferred to the distinction made by the Bombay High Court between basic customs duty and additional duty and the consequences of exemption flowing therefrom. The consequences pointed out by Bombay High Court in the portions extracted above cannot stand once following the Supreme Court decision, it is held that additional duty is also customs duty. If the goods imported were not wholly exempt both from basic customs duty and additional duty (admittedly in this case they were not exempt from basic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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