9911796707
TMI Blog1999 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Declaration to declare that the newly amended rules, levying 10% export duty on export of rough granite on and from 1-3-1992 does not apply to the petitioner in respect of the 35-967 CBM consignment of granite cleared by the 2nd and 3rd respondents for export on 11-2-1992 from Tuticorin Port and consequently direct the respondents to return a sum of Rs. 37,414/- collected on 23-3-1992 as export duty from the petitioner in respect of shipped consignment of 35-967 CBM of rough granite blocks for export on 11-2-1992 by vessel "M.V. Boris Bobahkin" and shipped by different vessel. 4.In support of the writ petitions, the petitioners herein have filed separate affidavits narrating all the facts and circumstances that forced them to file the present writ petitions and requested this Court to allow these writ petitions as prayed for, per contra, on behalf of the respondents, a counter affidavit has been filed rebutting all the material allegations levelled against them one after the other and ultimately they have requested this Court to dismiss these writ petitions for want of merits. 5.Heard the arguments advanced by the learned Counsel appearing for the rival parties. I have perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etric tonnes (MT) valued at Indian Rs. 3,74,169/- (F.O.B. Value), in W.P. No. 5900/92. The petitioner herein are the shippers and the consignee is M/s. Indians Granite International Limited. 21 Chancery House, 53-64 Chanury Lane, London WC 2A 10X and the destination is Marina Dicarara Italy. It is their case that they submitted the above shipping documents on 11-2-1992 and as per the rules existing on 11-2-1992 there was no tax for export of rough granite blocks and the heading of shipping documents itself reads as follows : "SHIPPING BILL FOR EXPORT OF DUTY FREE GOODS" The Export of rough granite was duty free item hence no duty was payable. Shipping documents submitted on 11-2-1992 were checked and cross checked, verified, physical verification was completed and clearance for export was granted by way of order of "Let Export" on 11-2-1992 as per the then existing rules. As per the original schedule, the said consignment ought to have been loaded to the vessel "M.V. Borris Bobbakin" form the Tuticorin Port. But the said vessel could not take the said cargo due to "Draft Problem" as the depth of the Tuticorin Port is very low and as the draft position of the vessel reached the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled for the refund of the same. According to them, aggrieved by the said acts of the 2nd and 3rd respondents and as there is no other efficacious and alternative remedy available to them, they have come forward with these writ petitions by invoking Art. 226 of the Constitution of India. 8.Per contra, it is contended by the respondents in their counter that there are absolutely no merits in the above writ petitions and the same are liable to be dismissed in limine. According to them the petitioners have filed the shipping documents on 11-2-1992 and the processing of the document was done on the same day and the examination of the goods was also done by the second respondent's official on 11-2-1992 and that the Superintendent of the 2nd respondent's department made the "Let Export" order permitting clearance and loading of the goods for exportation without payment of any duty. Therefore it is contended by them that in such circumstances, it is the duty of the exporter to load the goods under Customs Supervision into the vessel M.V. Boris Bobahkin as per the shipping documents, and that the respondent department is not at all responsible for not exporting the goods in the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore the same is correct. Further according to the respondents, it is the fault of the petitioner in non-executing the proper officer's order of "Let Export" and ship the cargo by Vessel M.V. Boris Bobahkin and that moreover, the petitioners herein have voluntarily resubmitted the shipping bill with the request to permit the shipment by a difference vessel viz., M.V. Nikolay Shchkin. Therefore it is contended by them that it is implied that by the resubmission of the shipping bill by the petitioners herein would go to show that the petitioner is volunteering for re-assessment and that therefore the question of arbitrary demanding of duty as alleged by the petitioners does not at all arise. They further contend that the exporter cannot claim for assessment of his goods on a retrospective date when no export was actually taken place at all i.e., on 11-2-1992 and further according to them the duty was collected as per law and there is no injustice done as alleged by the petitioner herein. It is also their case that it is contrary to the fact that the petitioner herein was forced to pay the said sum of Rs. 75,940/- and 37,414/- respectively under protest, whereas the petitioners th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the export of rough granite was a duty free item and hence no duty was payable. The said shipping documents submitted on 11-2-1992 were checked and cross checked, verified, physical verification was completed and clearance for export was also granted by way of an order of "Let Export" on 11-2-1992 as per the then existing rules. That apart as per the original schedule the said consignment ought to have been loaded to the vessel. "M.V. Boris Bobahkin" from the Tuticorin Port. But the said vessel could not take the said cargo due to "Draft Problem" as the depth of the Tuticorin Port is very low and as the draft position of the vessel reached the prescribed level. Hence the petitioner could not load the said consignment which was cleared for export on 11-2-1992. In the meanwhile by the new budget for 1992-93, the Government of India has amended the excise rules by introducing 10% of tax on export of rough granite blocks on the FOB value and the said amendment is with effect from 1-3-1992. In the meanwhile the petitioners herein have resubmitted the shipping documents with a request to permit to ship by different vessel with the second respondent. By the 2nd respondent endorsed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods for exportation, without payment of any duty and in the said circumstances, it is the duty of exporter to load the goods under the Customs Supervision into the vessel M.V. Boris Bobahkin as per the shipping documents and for this lapse on the part of the petitioners herein, the respondent department is not at all responsible for not exporting the goods in the particular vessel M.V. Boris Bobahkin as alleged by the petitioners herein. It is the categoric contention of the respondents that the petitioner had failed to export the goods by the vessel while the proper authorities permitted clearance and loading of the goods. Thus it is the clear case of the respondents herein that while the clearance was made for the particular vessel M.V. Boris Bobahkin, the petitioner failed to ship the cargo by the said vessel and they have submitted the shipping documents with a request to permit to ship by a different vessel viz. M.V. Nikolay Shchkin. That apart it is also argued that the abovesaid request of the petitioners for amending the vessel name was made only on 23-3-1992 and the proper officer has rightly and duly reassessed the goods @ 10% ad valorem as per Sec. 17(4) of Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he name of the vessel, name of the shipper, name of the consignee, destination, weightage, measurement and value of the granite blocks to be exported. On receipt of the shipping documents, along with the invoice the customs department will cross check the details contained in the shipping documents with the invoice and after satisfying with the verification of the said details, the appraiser of the customs department along with the examiner will carry out physical inspection of the granite blocks and once again cross check with the details on the invoice, shipping documents and the granite blocks. If all the tallied then clearance will be given for the export of the blocks. In the instant case, after observing all the above formalities, the concerned officer of the respondents duly gave the clearance and made the "Let Export" order permitting clearance and loading of the goods for exportation without payment of any duty on 11-2-1992. Now it has become the duty of the exporter viz., the petitioners herein to load the goods under Customs supervision into the vessel M.V. Boris Bobahkin as per the shipping documents. But it is significant in this case to note that the petitioners herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per officer makes an order permitting clearance and loading of the goods for exportation and that being so, admittedly in this case, the export of goods has taken place only on 24-3-1992 after observing the vessel amendment formalities and at that relevant point of time i.e., on 23-3-1992 and admittedly on that date the amended rule came into effect by way of Notification No. 137/92-Cus., dated 1-3-1992 since the said amendment i.e., introduction of 10% tax on export of rough granite blocks on the FOB value, came into effect even from 1-3-1992. Thus strictly and only in accordance with the relevant rule prevailed on the relevant date, the authorities have levied and collected the duty as per sec. 16(1)(a) of the Act on the goods actually allowed for export on 24-3-1992. That apart in this case another significance aspect is that, the petitioners themselves alone have voluntarily resubmitted the shipping bills with the request to permit the shipment by a different vessel viz. M.V. Nikolay Shuchkin and also have paid the duty demanded on 23-3-1992. That being so, there is no merit at all in the contention of the petitioners that they cannot be penalised for no fault of their, basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
