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TMI Blog1998 (8) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No. 1815 of 1995 is a Public Limited Company having its works at Urla Industrial Estate, Raipur. Under its import licence, it imported 1880 M.Ts. of iron waste and scrap for consumption at its factory from Humberg, Czechoslovakia. The bill of entry for warehousing for home consumption was submitted on 14-8-1990 by the petitioner to the second respondent through its clearing agents M/s. Sharat Chatterjee and Company (VSP) Private Limited. The goods arrived at Visakhapatnam Port and were assessed by the Customs authorities at Rs. 67,28,206/-. The goods were warehoused on 6-9-1990 up to 4-12-1990 initially and extended up to 5-1-1991 for non-availability of railway wagons. Petitioner states that the basic Customs duty and auxiliary duty was assessed at 20% and 5% on the assessable value of the goods and the total duty was assessed at Rs. 28,66,452/-. 4.Petitioner complained that when a bill of entry for ex-bond clearance for home consumption for clearing the goods from the warehouse on payment of Customs duty and warehouse charges was presented on 31-12-1990 through its clearing agent, the Customs authorities reassessed the bill of entry for ex-bond clearance at 20% basic d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 5% to 25% is only prospective in operation and cannot be retrospective. Counsel further contends that the goods in question have been arrived and bonded in the warehouse much before 15-12-1990 i.e., the date of issuance of the notification and were also assessed at 5% auxiliary duty under Section 17 of the Customs Act and simply because the goods were lying in the warehouse as on 15-12-1990 the respondents cannot again reassess the goods and impose the enhanced auxiliary duty at 25%. Petitioners, it is contended, have submitted the bills of entry for home consumption under Section 46 of the Act before 15-12-1990 and therefore, the rate of auxiliary duty to be levied on the value of the goods is only at 5% irrespective of the date on which they were actually lifted. Learned Counsel also contended that the provisions under Section 15(1)(a) of the Act alone would apply to the facts of the case and not the provisions under Section 15(1)(b) of the Act and pleaded to declare the impugned Notification dated 15-12-1990 will only have prospective effect. He further pleaded that the provisions under Section 15(1)(b) of the Customs Act be declared as ultra vires to the Constitution as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel justified the collection of auxiliary duty as per the impugned notification whereby the auxiliary duty is increased from 5% to 25% with effect from 15-12-1990. In support of his contentions, learned Standing Counsel has cited an unreported decision of a Division Bench of this Court (Writ Petition No. 680 of 1991, dated 22-2-1991) in M/s. Vinayak Steels Limited, Diamond Complex, Hyderabad v. The Govt. of India and a decision of the Supreme Court reported in Khattar Enterprises (P) Limited v. Collector of Customs, Calcutta. 9.We have heard both the Counsel at length. The point which arises for our consideration is whether the second respondent is justified in collecting the auxiliary duty as per the impugned Notification dated 15-12-1990 issued by the first respondent? 10.For proper appreciation of the issues involved in these writ petitions, it is necessary to extract the provisions of Section 15 of the Customs Act, 1962. Section 15 :Date for determination of rate of duty and tariff valuation of imported goods. - The rate of duty and tariff(1) valuation, if any, applicable to any imported goods, shall be the rate and valuation in force; in the case of goods entered for home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the learned Counsel for the petitioners cannot be accepted. As already discussed above, in terms of the provisions contemplated under Section 15(1)(b) of the Act, when goods are warehoused, they have to be cleared from the warehouse under Section 68 of the Customs Act and as per Clause (b) of sub-section (1) of Section 15, the date relevant for determination of rate of duty is the date on which goods are actually removed from the warehouse. The impugned notification issued by the first respondent has come into force with effect from 15-12-1990, whereby the auxillary duty has been increased from 5% to 25%. Admittedly, goods of the petitioners were lying in the warehouse as on 15-12-1990 on which date the impugned notification is in operation. As the date relevant for determination of the rate of duty is the date on which goods are actually removed from the warehouse as provided under Section 15(1)(b) of the Act and as the petitioners have sought to remove their goods from the warehouse only after 15-12-1990 i.e., after the impugned notification came into operation, the respondents are, therefore, justified in seeking the enhanced auxiliary duty at 25%. 15.A Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned notification, the revised rate of auxiliary duty shall come into force with effect from the date of the said notification i.e., from 15-12-1990. The said submission of the learned Counsel is untenable since nowhere in the notification it was stated that it would come into force with retrospective effect.
19.Though the learned Counsel for the petitioners has cited various decisions (1 to 4) supra, though the ratio laid down in those decisions is not disputed, but they are not applicable to the facts and circumstances of the present case and as such they cannot lend any assistance to the learned Counsel.
20.On an overall appreciation of the submissions of the Counsel for the petitioners in the light of the provisions of the Customs Act, 1962 and also in view of the decision of the Supreme Court cited (5) supra, and the unreported decision of this Court, as indicated above, we are inclined to hold that the respondents are justified in seeking to levy the auxiliary duty at 25% with effect from 15-12-1990 through the impugned notification.
21.We do not find any merits in these writ petitions and they are accordingly dismissed, but in the circumstances, without costs. X X X X Extracts X X X X X X X X Extracts X X X X
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