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TMI Blog1986 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... to India and has been reported lost abroad and therefore the claim for drawback was inadmissible. On appeal, the Appellate Collector rejected the claim by holding that the goods were only loaded on the ship and as those goods were not landed at the port of destination and that there was also no evidence to show that the goods left the territorial waters of India or were not brought back, the drawback claim had been rightly rejected by the Assistant Collector. 3. During the hearing of this appeal, Shri Bernard Misquith Commercial Assistant of the appellants submitted that the goods were loaded on board the vessel. They were so entered in the export general manifest of the vessel, entry outward was granted to the vessel and the loading of the goods was acknowledged by the Preventive Officer by his endorsement on the reverse of the Export Promotion copy of the S/B by way of Customs tally. Further, the vessel reached the port of destination as per Shipping agents communication. There was no report that the goods were jettisoned during the course of voyage of the vessel and therefore, the Appellate Collector was not correct in holding that the goods have not left the territorial wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleted. If the goods are taken out of India to a place outside India, the export becomes complete. Clause 27 of Section 2 reads: "India" includes the territorial waters of India. If once the goods go out of the territorial waters of India, it could be said that the goods have been exported out of India to a place outside India. Further, the definitions given under Section 2 will have the meanings assigned to them unless the context otherwise requires. This aspect is clear from the wording of Section 2 itself. It is not the definition that is the governing factor, the context in which the expression is used assumes importance. Though in the Act, the expression Import is defined to mean bringing into from a place outside India for the purposes of determination of the rate of duty payable the High courts have held that rate of Customs duty cannot be calculated at the point of time when ship enters the territorial waters of India but at the point of time when the goods are to be off-loaded, but then the moment when goods enters the territorial waters of India, it would be subject to the control of the Customs authorities and would also be subject to the provisions of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted to any place outside India. The goods are exported by tendering a shipping bill under Section 50 of the Customs Act. The shipping bill mentions inter alia the port of destination. The shipping bill cannot be accepted for processing and for clearance of the goods for export in terms of Sections 50 and 51 unless the vessel has taken an outward entry for the port of destination under Section 39. Therefore, reading the law as a whole it is seen that the vessel has to enter outwards for a particular port, the shipping bill has to be filed under Section 50 and the goods have to be given permission to be loaded under Section 51. Thereafter, the ship takes port clearance under Section 42 and Export Manifest has to be delivered under Section 41. It is only when compliance is made with all these requirements and the goods reach their destination that the same can be held as the goods exported to any place outside India and the goods become eligible for the grant of drawback in terms of Section 75. In case the goods are not to be landed but diverted from the port of destination such an action would require amendment to the Manifest. Applying the aforesaid criteria to the appeal under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn port. It is, therefore, not correct to say that the export is completed when the shipping bill is presented to the Customs under Section 50 and the outward entry is granted to the vessel. In fact the grant of outward entry precedes acceptance of the shipping bill by the Customs for the port for which the outward entry is taken by a vessel. 13. My learned brother has also relied on the Supreme Court s decision in the case of Gangadhar N. Agarwal v. P.S. Tribikraman and another, 1983 E.L.T. page 1491. I beg to differ with his view and hold that the ratio of this judgment of the Supreme Court is not attracted to the present case. In the case before the Hon. Supreme Court, the Court held that for the purpose of levy of duty the actual date of arrival of the ship in port did not matter. But what mattered under Section 16 was the date of presentation of the shipping bill and if this date was earlier to the grant of entry outward to the ship it was deemed under the proviso to Section 16 that the shipping bill was presented on the date of such entry outward. The Supreme Court s decision therefore, clarifies the crucial date for the purpose of application of the rate of duty under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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