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TMI Blog2025 (2) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... IGM dtd. 27/02/2016 was filed and the goods belonging to the importer based in Thane were offloaded from the vessel at the Bombay Port. A copy of web shot pertaining to the IGM containing details such as Inward Date etc. of the vessel at Mumbai Port is annexed to the Appeal Memorandum. It shows that the vessel containing all the goods was in-warded at Bombay Port on 28/02/2016. The very same vessel then went to Pipavav Port. The goods belonging to the appellant were offloaded from the vessel at Pipavav Port on 01/03/2016. 2. As per the appellant as the vessel had arrived at Bombay Port l.e. an Indian Port for which IGM dtd. 27/02/2016 was filed in Bombay and the vessel inward date was shown as 28/02/2016, the date of arrival was 27/02/2016. By virtue of Union Budget 2016, the rate of duty was enhanced from 5% to 7.5% w.e.f. 01/03/2016. However, as the vessel arrived at Indian Port on 27/02/2016, according to the appellant, duty @ 5% was applicable. Therefore, appellant had paid duty @5%. Whereas the officers of the customs department were of a view that duty @ 7.5% would be applicable because the vessel arrived at Pipavav Port on 01/03/2016. According to the officers of customs t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med on board the rig which operates on the high seas. One of the issues was that whether rig (vessel) was lying in Indian territorial waters or outside the same? After concluding that the rig (vessel) was lying in the Indian territorial waters, it was held that the imported spares used and consumed on board were to be considered as Imported into India and were liable to Customs Duty because anything imported and thereafter consumed in Indian territorial waters is to be held as imported and consumed in India. Therefore, no transhipping of imported goods being sent to the rig (vessel) for the purpose of repairs/consumptions on board was allowed. Thus, it is clear that in case where advance bill of entry is filed, when an imported vessel arrives into Indian territorial waters, the cargo imported therein is chargeable to duty, irrespective whether the vessel offloads the cargo or otherwise. Thus, the rate prevailing on the date the vessel arrives into Indian territorial water is relevant and not the date when the same vessel carries some goods to another port. Aban Loyd Chiles Offshore Ltd V/s. UoI 2008 (227) ELT 24 (SC). While examining the dutiability in regard to the minera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of M/s Jill Pack (hereinafter referred to as the Appellant), it is submitted that the Appellant's contention about date of "entry inward" is not tenable. Proviso to sub-section (1) of Section 15 of Customs Act, 1962 is crystal celar and does not leave any scope for ambiguity as it provides that if a bill of entry has been presented before the date of entry inward 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. In the present case, the Appellant had filed Bill of Entry in advance i.e. on 25.02.2016 for goods to be unloaded at Pipavav Port. The vessel file IGM on 27.02.2016 but entry inwards was granted by the Customs at Pipavav on 01.03.2016. Thus, Bill of Entry in the present case was filed on 01.03.2016 when duty rate was hiked which the Appellant paid at the relevant time but sought refund of the amount so paid which is not legal, just and proper has been rightly rejected by the competent authority. Attention is invited to Section 30 and Section 31 of the Customs Act, 1962 as per which the master of vessel shall file IGM and the goods are allowed to be unloaded only when the Entry Inw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Priya Blue Industries Ltd. vs Commissioner of Customs (Prev.)- 2004(9) TMI 105- SupremC ourt has categorically laid down the law that unless the order of assessment has been challenged, the question of claim of refund does not arise. It has further been held that refund claim in not an appeal proceeding. In the present case, the Appellant had not challenged the assessment order charging higher rate of duty which in other words mean that assessment had attained finality. In such scenario refund claim without challenging assessment order is not entertainable and does not survive. Findings:- 9. This Court has considered contrarian submissions, it finds that Section 15 of the Customs Act 1962 reproduced below during the impugned period read as:- "15. Date of determination of rate of duty and tariff valuation of imported goods: "(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,-- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no doubt that the goods assume, the nature of imported goods, the moment they enter into territorial waters of India and thus become leviable to duty on such import but the machinery provision as contained in Section 15 indicates, as to how assessment is to be done and duty shall be calculated when goods are required to be subjected to duty. Reading of Section 15 along with the proviso makes it clear that in case filing of Bill of Entry precedes the date of entry inwards of the vessel, the Bill of Entry shall be deemed to have been presented on the date of such entry inwards. Entry inwards as has been correctly pointed out by the Departmental Representative is required to be as per process dictated in Section 30 and Section 31 of the Customs Act, 1962 which are reproduced below: "30. Delivery of import manifest or import report. - [(1) The person-in-charge of-(i)a vessel; or(ii)an aircraft; or(iii)a vehicle, carrying imported goods [or export goods] or any other person as may be specified by the Central Government, by notification in the Official Gazette, in this behalf shall, in the case of a vessel or an aircraft, deliver to the proper officer an import manifest p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad the cargo after completion of the necessary Customs producers. The entry inwards, once granted becomes a legal permission for the unloading of cargo at the port on such entry inward being accorded. The procedure helps customs officials to regulate imports, enforcement of imports and therefore, collection of duty where applicable. Section 31 reflects embodiment of this principle only in the statute. Therefore, there is no room for doubt that "Entry Inwards" is always port specific. 11. This Court has also examined the matter in the light of the decision cited by both sides as well as the relevant statutory provisions, the judgments cited by the appellants do not deal with situation where entry inwards are granted at two different ports at two different points of time. As is emanating from the facts of this case, this Courts finds that the submission made by the appellants, proceed on the wrongful basis that entry into territorial waters and the first entry inwards granted, at the first touched port will dictate rate of duty and shall be considered as date of entry inwards for all subsequent ports, it touches. This Courts finds that there is no statutory basis to support such an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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