9911796707
TMI Blog1987 (3) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... -12-1983 and 29-12-1983 free of duty in terms of the Notification aforesaid. But the vessels entered inwards finally on 5-1-1984, 10-1-1984 and 24-1-1984 respectively. It must be mentioned that the three vessels entered territorial waters and arrived in Bombay on 10-11-1983, 19-11-1983 and 27-11-1983 respectively. From Bombay they touched other ports before reaching Calcutta. The vessel Jalarashmi touched Vizag and Madras, the vessel s.s. Flaur touched Mangalore, Madras and Vizag and the Vessel Madhya Pradesh touched Madras before arriving at Calcutta. The goods covered by the bills of entry were cleared on 10-1-1984, 12-1-1984, 11-1-1984 and 24-1-1984 respectively. In terms of Sections 15 and 46 of the Customs Act, 1962 the relevant date for determination of rate of duty in the case of goods entered for home consumption, is the date on which the bill of entry is presented. The proviso to that Section specifies that if a bill of entry had 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. 3. According to the department the bills of entry were pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 proviso was an after-thought and was without jurisdiction. 6. The matter was adjudicated by the Collector of Customs and by the impugned order, he held that the dates for purpose, of Import or Exports duties were the statutory dates mentioned in Section 15(1) or Section 16 and not the date of physical entry or exist. He held that the two demand notices dated 27-12-1984 and 28-12-1984 had been issued under the proviso to Section 28(1) of Customs Act, 1962. The appellants were fully aware of the fact that notification 243/81-Cus. was not in existence on the date of the final entry inwards of the vessels. This fact was within the full knowledge of the importers and they did not submit the bills of entry to the Customs House for re-assessment nor did they inform the Customs House anything in this regard before taking clearances of the goods. He also did not agree that the vessels in question entered the territorial waters of India within 31-12-1983 before arriving at Calcutta. He confirmed the demand amounting totally to Rs. 1,67,99,260.78. Hence the present appeal. 7. Shri Roy Chowdhury, learned Counsel for the appellants stated that the demand is ultra vires of Section 28 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the tariff schedule on the date they entered the territorial waters, any subsequent withdrawal of the exemption will not have the effect of making the goods liable to duty on the basis that the exemption is no longer in force on the date of presentation of the bill of entry for clearance of the goods. The learned Counsel, therefore, submitted that the subject vessels had entered the territorial waters before the crucial date and the decision reported in the judgment of the Bombay High Court would apply to the present facts. 9. The learned Counsel also urged that the concept of territorial waters has undergone substantial change in International Law. As per the territorial waters Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, No. 80 of 1976 the limit of territorial waters is stated to be the line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate base line. This Act also envisaged the concept of Contiguous Zone of India which extended to a distance of 24 Nautical Miles from the nearest point of the base line. The Central Government may exercise such powers and take such measures in or in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued within a period of 5 years and the proviso to Section 28 could be invoked. 11. In order to establish suppression, the S.D.R.. urged that the notification was valid only upto 31-12-1983. The vessels finally entered Calcutta Port after that date. The decision in Apar s case would not apply because the vessel arrived at Bombay and entered into the territorial waters before the notification was rescinded. The vessel is normally intended to carry goods for several ports and it may touch several ports before unloading the cargo intended for a particular place. In 1983 E.L.T. 65 (Ker.) (Shri Ramlinga Mills Private Ltd. and others v. Assistant Collector of Customs and others) the question for consideration was the meaning of import . In that case, the vessel entered into the territorial waters of India around Bombay on or about 28-12-1978 and ultimately reached the port of destination after 31-12-1978 when the notification was not in force. While dealing with the concept of import , it was held that the mere entry of the vessel with the goods into the territorial waters or even berthing in the port of Bombay will not vis-a-vis the importers of Cochin constitute complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essels touched other ports in India and reached Calcutta only in January, 1984. The bills of entry were filed prior to the withdrawal of the notification and were assessed to NIL duty. The orders of clearances were also given under Section 47 of the Customs Act. But on the dates, the goods were out-passed the notification was not in force. In this connection one has to refer to Section 2(25) of the Customs Act which defines import goods as follows : - Import goods means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption." 16. The main contention of Shri Roy Chowdhury is that before the withdrawal of the notification, the goods had come into the territorial waters of India i.e. port of Bombay and that the Department has not adduced any evidence that thereafter the vessels had gone out of the territorial waters before they were berthed at Calcutta. The decision of the Calcutta High Court in 1987 (27) E.L.T. 626 (cited supra) applies to the facts of the present case. In that case, the appellants were the importers of Viscose Stelin Yarn. The ships carrying the commodity entered into the territorial wate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said that there was an import of the goods into territorial waters. As regards the subject goods, they become imported goods only when they were out passed at Calcutta and were cleared for home consumption. Till that stage they were carried as imported goods and the mere fact that in transit the vessel had touched several other ports in India would not make any difference. The decision of the Bombay High Court has no application to the facts of the present case because the goods had entered into territorial waters and there was a subsequent withdrawal of the exemption. The goods were stored in the bonded Ware House at Bombay. The contention whether the vessels were within the territorial waters or in the contiguous zone is not a relevant factor in view of the fact that the Calcutta was the port of destination for the discharge of the subject goods. Moreover in Article 33 of the Third United Nations Conference on the Law of the Sea Zones the concept of contiguous zone was envisaged to prevent infringement of Customs, Fiscal, Immigration or Sanitary Laws. Since the Customs Act refers only to the Territorial Waters of India, the concept of contiguous zone will not assist the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as show cause notices. Such a contention is not justified. The notices issued on 27-12-1984 and 28-12-1984 do not refer to any suppression of facts. No grounds have been set out in these notices as to how the proviso to Section 28(1) was applicable. 19. The term suppression under Section 28(1) proviso is analogous to the term fraud . Section 17 of the Contract Act defines fraud . There is no proof that the appellants intended to deceive the Government or induced them to out pass the goods despite the withdrawal of the exemption. There was no active concealment. Suppression envisaged a deliberate or conscious omission to state a particular thing by one who is legally required to state the same. In this case, it cannot be said that there was any suppression because the department was aware that notification had been withdrawn. Under Section 47 of the Customs Act, the proper Officer may make an order directing the clearances if he is satisfied that the goods which had entered for home consumption are not prohibited goods and that the importer has paid the import duty and other charges payable under this Act. So it was the duty of the proper officer to have checked up whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
