1. This matter originally was a revision petition which has been transferred to the Appellate Tribunal and is taken up as an appeal for consideration.
2. We have considered the appeal which is against the refusal by the Appellate Collector to allow the re-export of the gold bar imported by the Appellant on 13-5-1982.
3. It was submitted on behalf of the Appellant that he, having declared the gold bar, it cannot be held to have been "imported" in view of the case law, especially 1981 ELT 153. It was argued that the import was not completed and, therefore, the goods are not liable to confiscation.
It was also submitted that earlier the Govt. of India and the Appellate Collector had allowed re-export in similar circumstances. As no offence has been committed by the Appellant, the confiscation is not valid.
5. We have considered the submissions made by both sides and examined the case law cited by the Appellant.(K. R. Ahmed Shah v. Addl. Collector of Customs, Madras), (a) importation can only be said to have taken place when the goods had crossed the Customs barrier; (b) reading Ss. 77 and 80 of the Act together, it would appear that if a passenger declares an article, (i) he may import it on payment of the appropriate duty provided the import itself is not prohibited; or (ii) he may request the proper officer to detain such article for return to him on his leaving India.
7. In 1981 ELT 298 (Shewbuxrai Onkarmull v. Assistant Collector of Customs), the Hon'ble High Court at Calcutta cited the aforesaid case with approval and purported to follow the said decision. But then the question of construction of "import" that had been raised in the Calcutta case was in the context of clearance from a bonded warehouse and not in terms of Ss. 77 and 80 of the Customs Act, 1962.
8. The third case which was cited before us is reported in 1982 ECR 472D (Mis. Shri Ramalings Mills Pvt. Ltd. and Ors. v. Asstt. Collector of Customs and Anr.). In this case as well, the aforesaid Madras case was cited with approval and it was held that there cannot be an import merely on entry into territorial waters or berthing at ports en route.
It is only when the goods reach the port of destination that the taxable event occurs.
9. (a) It may be observed, with utmost respect, that in all the three aforesaid cases "import" defined in S. 2(23) of the Act, read with the definition of "India" in S. 2(27) of the Act had been given, on the basis of the Supreme Court case in A.I.R. 1958 S.C. 341 (Empress Mills, Nagpur v. Municipal Committee, Wardha = l958 S.C.R. 1102), a restricted meaning to mean incorporation and mixing with the mass of goods in the country after clearance through the Customs. Otherwise, it was apprehended, even goods in transit through India, say, on board a plane, would, notwithstanding that they were not actually unloaded, become exigible to duty merely on entry into the territory of India; (b) If we may say so with respect, in the Supreme Court case, their Lordships were concerned with the ordinary meaning of the words "imported into or exported from" occurring in the C.P. and Berar Municipality Act (1922), the said words not having been specifically defined in that statute itself as in the Customs Act. The question for consideration in the said case was as to whether goods in transit through the Municipal limits were "imported into" or "exported from" within those limits so that a terminal tax could be levied on them. It was in the context of the aforesaid question that their Lordships in the Supreme Court had adverted to the absurdity of levy of tax on goods in transit passing through the Municipal limits of Wardha; (c) In so far as the Customs Act, 1962 is concerned, however there could be no such untoward or absurd situation, if the expressions ''import" or ''export", as the case may be, are construed in accordance with the definitions given in the statute itself, because in terms of Sections 53 and 54 of the Act, goods imported in a vessel or aircraft and mentioned in the manifest as for transit in the same vessel or aircraft, or intend for transhipment are allowed to be transmitted or transhipped, as the case may be, without payment of duty, notwithstanding that there has been, actually, an "import"; (d) It is unfortunate, that in the cases cited in paras 6-8 supra, the attention of their Lordships had not been drawn to the provisions of Sections 53 and 54 of the Act. Possibly, there were no corresponding provisions in the C.P. & Berar Municipality Act; (e) In Sections 77 and 80 of the Act as well, we find similar provisions exempting a passenger from payment of duty and the rigour of confiscation in terms of Sec. Ill of the Act, provided the conditions therein are fulfilled, notwithstanding that an "import" had occurred.
(a) there must be a truthful declaration of the contents of baggage including those articles which are not merely dutiable but also those whose import is prohibited; and 11. In this case the Appellant, admittedly, went to the Customs and declared his goods and also paid duty on some of the items under the Baggage Rules. Request for detention was made and re-export allowed in respect of one gold Kara. There is no reason why such a request was not made in respect of the gold bar in question as well.
12. In terms of the decision of the High Court of Madras, a request under Sec. 80 of the Customs Act to detain the goods for subsequent re-export shows a passenger's intention not to import the same if the goods are prohibited. In the instant matter, it has not been shown to us that the passenger after making entry of the goods by way of declaration simultaneously and immediately asked for re-export of the same. On the contrary, it has been stated that the gold bar was intended to make ornaments after being cleared from the Customs.
13. In the result, we see no reason to interfere with the orders below.
We dismiss the appeal.