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TMI Blog1981 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... f 60% + 1 5% ad valorem at the relevant time. 3. There was, however, an exemption notification issued by the Government of India, namely, the Notification No. 59-Cus. I, dated 9-6-1975, granting partial exemption to Endosulfan of a particular variety satisfying the requirements mentioned in the notification itself and in terms of the same duty as in excess of 35% + 5% was exempted. The aforesaid exemption notification was in force up to and inclusive of 31-3-1976. The petitioners cleared the warehoused goods for home consumption in terms of the provision under Section 68 of the Customs Act, 1962 on 16-7-1976. But since on the date of clearance of the goods, the exemption Notification No. 59-Cus.I, dated 9-6-1975 was not in existence the Customs authorities assessed the goods at the statutory rate of 60% + l5%. The petitioners claimed that the goods should have been assessed @ 35% + 5% as prevailing when the consignment was imported at Bombay in view of High Court's pronouncement in the case of M/s. Synthetic and Chemical Ltd. and accordingly they claimed difference of duty as refund. The Assistant Collector rejected the said claim as unsubstantiated. Thereupon, the petitioners Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri R.P. Bhatt, Senior Counsel of the petitioners contended that Section 12 determines the chargeability whereas section 15 quantifies the amount. Once it is held that the goods were ab initio not chargeable to duty more than at a particular rate at the point of importation, Section 15 cannot alter the situation so far as the chargeability is concerned. 6. The Government have carefully considered the various arguments and observe that the short question that arises for determination in this case is whether the crucial date for the purpose of levy of customs duty on the goods imported should be the date on which the goods have been actually entered the territorial waters of India or the date as is statutorily determined under Section 15 (l) of the Customs Act. At the time of personal hearing, the Sr. Advocate referred to the definition of the term 'Import' as provided under Section 2 (23) of the Customs Act. Sub-section (23) of Section 2 defines the term 'Import' as bringing into India from a place outside India. Sub section (27) of Section 2 defines 'India' as including territorial waters of India. The Sr. Advocate contended that it has to be ascertained in the first instance whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners company is entitled to the benefit of the exemption notification issued on 9-6-1975 under Section 25(1). Before that question is answered, it would be appropriate to refer to the relevant provisions of the Customs Act. Section 12 is the charging section. At the material time it read that "Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Indian Tariff Act, 1934 or any other law for the time being in force, on goods imported into, or exported from, India." There is therefore no doubt that except as otherwise provided by this Act, the goods will be dutiable as per the rates mentioned in the Indian Tariff Act, 1934. 8. The next section that must be considered is Section 15 relating to the date for determination of rate of duty and tariff valuation of imported goods. The provisions of this section need to be carefully noted as they give certain dates which are relevant for the calculation of the amount of duty payable. Section 15(1) which falls for interpretation read at the material time as follows : "The rate of duty, rate of exchange and tariff valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved is the relevant date, 16th July, 1976 is, therefore, the relevant date so far as the present case is concerned. 9. Coming to the Supreme Court's decision on Prakash Cotton Mills case once again, Government observe that the facts before the Supreme Court show that there was removal under section 68 read with sec. 15(1) (b). On the date of removal of the goods, the rupee had been devalued and customs duty in terms of the devalued rupee was increased. The importer did not want to pay that higher amount of duty in terms of rupees and therefore pleaded that the goods having been imported into India earlier when they were already chargeable to duty, that rate of exchange should prevail and not the subsequent rate. This argument was expressly negative by the Supreme Court and their lordships laid down that it was pretty clear that clause (b) of sub-section. (1) of Sec. 15 contemplated applicability of the rate of duty, the rate of exchange, and tariff valuation in force on the date on which the warehoused goods were actually removed from the warehouse, after the amending Ordinance had come into force and as such the customs authorities and the Central Government were quite right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption from any duty so far as flourescent lamp tubes or glass tubes were concerned. In order to work out the rate of duty on any particular date, the basic requirement as per the Division Bench was that the goocds would be dutiable in the first instance. In other words, there must be chargeability to duty on the date of importation. On that date, there was total exemption which means that the glass tubes in question were not dutiable goods at all on 29-3-1967 when actually imported. If that is so, can any one, apply the subsequent rate which came into force after the 1st April, 1967 to the goods in question. The learned Judges pointed out that this cannot be done. The goods which were not liable to pay duty at all when imported cannot be subjected to the duty by the procedure to be adopted under Sec. 15 for clearance. 11. Shri Bhatt argued before the Bench that the judgment should be understood in proper spirit and no distinction should be made between a case where the exemption is total and a case where there is partial exemption. The Government do not wish to improve upon the judgment which lays down a very clear proposition that in order that any goods should be made to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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