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TMI Blog1962 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... porting the finished goods out of India. In one case the consignment consisted of four packages and in the other of three, all containing woollen fabrics. The two consignments were brought into the country by two ships, Bradeveratt and Rutheverett. The ships arrived within a few days of each other and bills of entry were filed in respect of the two consignments on the same date. The value of the consignment in one case was declared at Rs. 7,052.50 np. for which the appellant was assessed to duty by the Customs Authorities at Rs. 6,454.31 np. The value declared in respect of the other consignment was Rs. 9,404 for which the appellant firm was assessed to duty at Rs. 8,602. The assessments in the two cases were made approximately at about the same time. In respect of one consignment the Customs Authorities recorded that the assessment had been in order and therefore directed the goods to pass. In the other case a similar note appears to have been made by which the assessment was held to have been in order. The consignments not having actually been taken delivery of for some reason or other, the relevant papers were placed before the Appraiser, Special Section, for further scrutiny in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Customs decided to proceed under Section 29B pending production of proof as regards the real value of the consignments. Let the Assistant Collector of Customs Speak for himself. "I say that the bill of entry was filed on 8th January 1960 in the Import Department of the Customs House when it was noted. On 9th January 1960 the scrutinising Appraiser returned the bill of entry to the petitioner with the order to produce Indent, Acceptance, Bank Draft, Bank Memo, Marine Insurance Certificate, full correspondence leading to the finalisation of the order and shipment and to produce shipment sample. Between 9th January 1960 and 18th January 1960 the petitioner kept the relative bill of entry with itself without any further action. The said bill of entry was again produced to the scrutinising Appraiser with the aforesaid documents on 18th January 1960. On the said date the goods were assessed to duty prior to their examination on the basis of statements made by the petitioner in the bill of entry under permission from the Principal Appraiser, a Customs Collector, in accordance with the procedure prescribed under s. 29A Sea Customs Act. In addition the petitioner made the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions contained in the two Sections, 29A and 29B, cannot be considered mutually exclusive. 6.The learned trial Judge negatived the appellant's contention that the provisions contained in the two sections were mutually exclusive. He held that the assessment under Section 29A as well as under Section 29B was provisional although he noticed that the two sections were "somewhat different". The learned judge did not give any indication of his view as to how they were different. He emphasised the language of Section 29A which according to him permitted resort to Section 29B if and when occasion arose, observing at the same time that "action taken under Section 29B may be taken irrespective of action taken under Section 29A". It has not been very easy for us to reconcile these findings and we feel constrained to observe that the findings taken together do not appear to support the view upon which the learned Judge chose to rest his decision. 7. We have now to notice the relevant provisions of the Sea Customs Act which fall for consideration in these appeals. Sections 29B occur in Chapter V of the Act which deals with the levy of customs duties. Section 20 provides among other things f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Section 29A provides for assessment of duty prior to examination of goods. It says as follows : - "29A. Notwithstanding anything contained in this Act; goods chargeable to duty may, prior to the examination thereof, be permitted by the Customs Collector to be assessed for the purposes of this Act on the basis of the statement contained in the bill of entry or shipping bill, as the case may be, but if it is found subsequently on an examination of the goods or otherwise, that any such statement is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be reassessed to duty." Reading the words of the section it seems plain that authority has been given to the Customs Collector to permit assessment of goods chargeable to duty before the goods are examined. Section 31 says that goods chargeable to duty upon the value thereof but for which a specific value is not fixed by law for the purpose of levying duties thereon, shall without unnecessary delay, be examined by an officer of Customs. Thus Section 29A permits assessment before examination of the goods where presumably the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his section and any rules made thereunder, (2) When the owner of any goods in respect of which the duty has been assessed provisionally under sub-section (1) has paid such duty, the officer of Customs may make an order allowing the goods to be cleared for home consumption or shipped or waterborne to be shipped for exportation, as the case may be, and such order shall be sufficient authority for the removal of the goods by the owner. (3) When the duty leviable on such goods is assessed finally in accordance with the provisions of this Act, the duty provisionally assessed under sub-section (1) shall be adjusted against the duty finally assessed, and if the duty provisionally assessed falls short of, or is in excess of the duty finally assessed, the owner of the goods shall pay the deficiency or be entitled to a refund as the case may be. (4) The Chief Customs authority may, subject to the condition of previous publication, make rules for the purpose of carrying out the provisions of this section and, in particular, such rules may provide for— (a) the circumstances in which, and the restrictions, and conditions subject to which, duty may be provisionally assessed on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting removal of the goods pending the final assessment. The other provisions in Section 29B need not be further considered since they relate to adjustments as between duty finally assessed and duty provisionally charged or relate to the conditions and content of the rules to be framed by the Central Government for making final an assessment provisionally made. 10.Taking the provisions contained in Section 29B as a whole one can have no doubt that for the purpose of avoiding delay and with a view to enable the importer to clear his goods in as short a time as possible, the procedure of provisional assessment of duty has been evolved; but as we have said one or other of the three conditions stated in the section must be present to justify such provisional assessment. 11.It has been said that in the present case the Customs desired fuller information in order to able to assess properly the consignment to duty and since the manufacturers' price list was not readily forthcoming, it was decided to release goods on treating the assessments already made under Section 29A as having been made under Section 29B. We do not think that this procedure is permitted by the law. 12.Section 29A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indifferently applied to every case even for the purpose of reopening an assessment already made under 29A is to accept an argument which seems to be repelled by the provisions of the Act. 13.Taking the two Sections, 29A and 29B, together it seems to us that they contemplate entirely different sets of circumstances. Where no doubt is entertained as to the truth of statement contained in the bill of entry in respect of value or quantity of the goods imported, the Customs Collector permits assessment on the faith of that statement. That assessment is for all purposes final unless and until the examination of the goods themselves or some information received by Customs Authorities establishes the falsity of the statement. In such case re-assessment takes place. But under Section 29B(1)(b) which is said to be the clause under which action was taken, there is no question of any statement having been found untrue. It is only a case of inadequate information and the Customs Authorities therefore feel obliged to make a tentative assessment which becomes final at a later point of time on receipt of further material or information as the case may be. We think it would not be right to hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d position as will appear from the excerpts we have set out from the affidavit sworn by the Assistant Collector of Customs himself. It has been made plain that the assessment was made in these two cases under Section 29A; the examination of the goods was held under Section 29A, but then the proceedings were converted into one under Section 29B. This is precisely not allowed by the law. 16.It may perhaps be argued that it matters little whether an assessment is made under Section 29A or under Section 29B since in either case there may be a revised assessment. We are unable to accept this contention. In the case of Section 29A the assessment is final unless facts establish that the basis of that assessment is wrong, the error having been induced by declarations found to be untrue, in which case alone there may be re-assessment. But in the case of Section 29B the assessment begins by being provisional and ends by being final on a later date. When the Legislature has prescribed two different procedures applicable to two sets of circumstances, we do not think it is open to the authorities concerned to inter-change them or mix them up. 17. It has been said that when an assessment has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment is shaken and the Customs Authorities are satisfied that the statements in the bill of entry were untrue. We have to take the word "otherwise" in the context in which it appears. Examination of goods might demonstrate the falsity of the statement-contained on the bill of entry. The word 'otherwise' in this context can only mean that besides physical examination of the goods there may be other ways or means by which information may reach the Customs to satisfy them that the statements were false statements. That is the only way in which we think the word "otherwise" has to be construed. It does not in our view permit indiscriminate resort to Section 29B. It merely keeps all avenues of enquiry open to the department. Legislature has not limited the means on the ways by which the Customs can inform themselves of facts and circumstances enabling them to reach the conclusion that the statements contained on the bill of entry are untrue. That, we think, is the sense in which the word "otherwise" should be construed and it cannot be taken to sanction a hybrid procedure which is neither 29A nor 29B but both, being mix-up of the two. 19.The learned Judge concluded by expressing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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