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TMI Blog1988 (6) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962 and in supersession of the Notification of the Government of India No. 216-Customs dated 1st November, 1980 exempted the goods specified in the table annexed to the said Notification and falling within Chapter 56 of the First Schedule to the Customs Tariff Act 1975 (Act No. 51 of 1975), when imported into India from so much of the duty of Customs leviable thereon under the said First Schedule as is in excess of 20% ad valorem. The said Notification dated 14th December, 1982 is Annexure -'B' to the petition. Another Notification was issued by the Central Government being No.39/83 dated 1st March 1983 in exercise of the powers conferred by sub-section (i) of Section 25 of the Customs Act, 1962 (Act 52 of 1962) whereby the said Notification No. 276/82 Customs, dated 14th December, 1982 was amended and instead of the words "20% ad valorem" the figure and words "40% ad valorem" was substituted. The effect of the amendment dated 1st March, 1983 was that the exemption which was in respect of duty of customs in excess of 20% ad valorem was reduced to the extent of the duty of customs in excess of 40% ad valorem. Therefore, by the said third Notification which is A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear the goods mentioned in the petition. The Bank Guarantee was to be renewed on or before the date of expiry of the same. The said interim order further directed that out of 40% of basic duty 20% of the basic duty would be paid under protest, as, according to the petitioner, the said was not payable. 5. The petitioner preferred an appeal from the said order and the Appellate Court by an order dated 25th March, 1983, inter alia,directed that instead of paying 40%, the petitioner will pay 20% ad valorem duty only and the petitioner will furnish Bank Guarantee for the remaining 20% of the basic Customs duty as also the additional duty and auxiliary duty of Customs. 6. The only point that has been urged on behalf of the petitioners is that the said Notification No. 216-Cus. dated 1st November, 1980 exempted the whole of the duty of Customs as well as the additional duty levied under Section 3 of the Customs Tariff Act, 1975 (Act No.51 of 1975) as also the duties levied under the Finance Act in the form of auxiliary duties of Customs. Therefore, according to the petitioner, the demand of the Customs authorities for payment of additional duty levied under Section 3 of the Customs T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, of an exceptional nature to be stated in such order, any goods on which duty is leviable. (3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty. Explanation :- 'Form or method', in relation to a rate of duty of customs means the basis, namely, valuation, weight, number, length, area, volume or other measures with reference to which the duty is leviable." 10. The word 'duty' is defined in Section 2(15) which is as follows :- "2(15). 'Duty' means a duty of customs leviable under this Act." 11. It was submitted that additional duty is levied under Section 3 of the Customs Tariff Act, 1975, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my opinion, the language of the said Notification No. - 216-Cus, dated 1st November, 1980 is quite clear. Inasmuch as it exempted the goods concerned, when imported into India from whole of the duty of customs leviable thereon, under the said first schedule. What was exempted was the whole of duty of customs leviable under the said first schedule and not the other duties of customs which do not find any mention in said first schedule namely the additional duty of customs and the auxiliary duty of customs. The additional duty of customs if levied under Section 3 of the Customs Tariff Act, in the form of countervailing duty and the auxiliary duty of customs is levied under the Finance Act. May be that the said 'additional duty' and the said 'Auxiliary duty of Customs' are also duties of Customs within the meaning of Section 12 of the Customs Act yet they are not leviable under the said first schedule to the Customs Tariff Act and so such it cannot be said that the said 'additional duty' or the said 'Auxiliary duty' were also exempted by the said notification. Therefore, in my opinion, there is no substance in the contention made on behalf of the petitioner, that the said Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Bank, the petitioner on the 14th December, 1982. That also indicates that the instructions for opening the letter of credit must have been given by the shipper, on a date earlier thereto. In any event the submissions on behalf of the petitioner that the rate of customs duty prevalent as on the date of the contract, was as per the Notification No.286/82-Cus., dated 14th December, 1982, is factually incorrect even according to the documents annexed to the petition. The submissions made on behalf of the petitioners is that the petitioner No.1 entered into the contract relying on the representation that the said duty of customs as per the notification dated 14th December, 1982 would be payable, when the goods would be ultimately imported into India. It was submitted on behalf of the petitioner that they relied on the representation and/or promise of the Government of India that the duty of customs as prevalent at the time of the contract, would be the duty which will be charged at the time, when the goods are actually imported. According to the petitioner, the Government of India is estopped by its promise, which was made by the said notification dated 14th December, 1982. 16. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the date on which the goods are actually removed from the warehouse, (c) in the case of any other goods, on the date of payment of duty : Provided that if a bill of entry has 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. (2) The provisions of this section shall not apply to baggage and goods imported by post." 18. The said section states that when a bill of entry is 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 inward. So the rate of duty and the tariff valuation is related to the date on which the bill of entry is presented or in case of goods cleared from warehouse on the date the goods are actually removed from the warehouse and in any other case on the date of payment of duty. The petitioner is deemed to have knowledge about the said section of the Customs Act. Any person, who intends to import any goods into India is supposed to know that the rate of duty which will be charged, will be the rate prevalent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties. It has often been said in England that the doctrine or promissory estoppel cannot itself be the basis of an action it can only be a shield and not a sword: but the law in India has gone far ahead of the narrow position adopted in England and as a result of the decision of Supreme Court in Motilal Sugar Mills v. State of Uttar Pradesh, it is now well settled that the doctrine of promissory estoppel is not limited in its application only to defence but it can also found a cause of action. The decision of this Court is Motilal Sugar Mills case (supra) contains an exhaustive discussion of the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty was to apply on the basis as per Section 15 of the Customs Act. So there was no question of any representation to the petitioner that the rate of duty prevalent as on the date of the contract would continue to be so until the date of actual import or the presentation of the bill of entry. Since there was no promise nor any representation by the Government and since there was no representation by the Government that it would not exercise its right to change the rate of customs duty the question of any acting on such alleged promise or representation did not and could not arise and the question of any promissory estoppel does not and cannot arise. 20. In view of what have been stated above the Rule is hereby discharged and the application is dismissed. I am told the bank guarantee was issued by the American Express International Banking Corporation in favour of the Registrar, Original Side. I am further told that the said bank guarantee has been duly renewed and is still in force. The said bank is hereby directed to deposit the entire amount payable under the bank guarantee to the Registrar. Original Side of this Court forthwith on service of a signed copy of the operative port ..... X X X X Extracts X X X X X X X X Extracts X X X X
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