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Tigrania Steel Corporation Vs. Union of India - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberMisc. Petition No. 780 of 1973
Judge
Reported in1994(70)ELT535(Bom)
ActsCustoms Act, 1962 - Sections 2, 2(22), 2(23), 2(25), 2(26), 2(27), 12, 12(1), 14, 15, 15(1), 17, 28, 30, 41, 46, 68, 130, 147, 149 and 154
AppellantTigrania Steel Corporation
RespondentUnion of India
Appellant AdvocateP.L. Nain, Adv., i/b., Mody Shambhu & Co.
Respondent AdvocateR.J. Joshi and ;F.H.J. Talyarkhan, Advs.
Excerpt:
customs - short-levy - customs act, 1962 - alleged determination of short-levy made by assistant collector under order subsequently upheld in appeal improper - held, orders required to be quashed and amount which paid to government would be required to be refunded to petitioners. - - but how does a party exercise its right of appeal when there is no reasoning process in the decision ? all that we have in this order is the bald statement that the demand for short-levy is correct and requires to be satisfied. it is well settled that normally an amendment relates back to its original date.s.k. desai, j.1. a very short point arises for determination in this petition which has been argued on the averments in the petition and on the statutory provisions without a return. a few facts necessary for a proper determination may now be stated. 2. on 24th october, 1964 the great eastern shipping company ltd., who were owners of a vessel 's. s. jag jyoti' (hereinafter, referred to as jag jyoti), filed their import manifest in respect of the said vessel or ship. this would show that the ship, which was a tanker, arrived in the bombay harbour on that day. on 24th june, 1965 the director general of shipping granted to the said great eastern shipping company ltd., hereinafter referred to as 'the company' for brevity's sake, in pursuance of their earlier request permission to scrap the.....
Judgment:

S.K. Desai, J.

1. A very short point arises for determination in this petition which has been argued on the averments in the petition and on the statutory provisions without a return. A few facts necessary for a proper determination may now be stated.

2. On 24th October, 1964 the Great Eastern Shipping Company Ltd., who were owners of a vessel 'S. S. Jag Jyoti' (hereinafter, referred to as Jag Jyoti), filed their Import Manifest in respect of the said vessel or ship. This would show that the ship, which was a tanker, arrived in the Bombay harbour on that day. On 24th June, 1965 the Director General of Shipping granted to the said Great Eastern Shipping Company Ltd., hereinafter referred to as 'the Company' for brevity's sake, in pursuance of their earlier request permission to scrap the said vessel Jag Jyoti. On 13th July, 1965 a bill of entry was filed for home consumption in respect of Jag Jyoti by the Company. In the said bill of entry the value of Jag Jyoti which was declared was rupees ten lakhs. The import duty prevalent on this date was 32%. On 21st July, 1965 there was an oral agreement between the Company and the petitioners for the sale of the said vessel for the amount of rupees twelve lakhs and on the very next day it appears that the petitioners paid 10% of this amount viz. Rs. 1,20,000/- as earnest money to the Company. On 2nd August, 1965 the Company wrote a letter to the Director General of Shipping requesting permission to sell the said vessel Jag Jyoti to the petitioners. A copy of the said letter is annexed as Exhibit 'A' to the petition. On 20th August, 1965 a notification was published increasing the import duty on ships and vessels to 45% instead of the existing 32%. On 21st August, 1965 an agreement in writing for the sale of Jag Jyoti was executed between the Company and the petitioners. A copy of the said agreement is annexed as Exhibit 'B' to the petition. The agreement recites most of the facts earlier mentioned and under clause 7 thereof the petitioners as the purchasers are responsible for the payment of all past and future customs and port dues and also for other tax or taxes on or in connection with the tanker and the sale of the tanker including sales tax. On 7th September, 1965 the Company addressed a letter to the Assistant Collector of Customs for permission to amend the bill of entry by substituting the name of the importer from the Company to the petitioners and for increase in the declared value of the vessel from rupees ten lakhs to rupees twelve lakhs, which was the price at which it had been agreed to be sold for being scrapped to the petitioners. The amendment was allowed to be carried out and the duty recomputed at Rs. 3,75,537.40 on the basis of 32%, which duty was subsequently paid on 6th December, 1965 and clearance of the ship Jag Jyoti effected.

3. On 2nd February, 1966 a show cause memo dated 29th January 1966 was served on the petitioners by the Assistant Collector of Customs, Special Investigation Branch, a copy of this show cause memo has not been annexed to the petition and accordingly it was subsequently tendered by the learned advocate for the petitioners and kept in the proceedings, being marked as 'X'. By the said show cause memo the Assistant Collector of Customs referred to the amendment in the bill of entry which was allowed pursuant to the application of the Company dated 7th September, 1965. According to the show cause memo, 'There was no error or omission of any kind in the bill of entry as originally presented in respect of the importer's name indicted therein so as to justify any amendment in the bill of entry.....'. It was on this basis that it was alleged that the petitioners had come into the picture after 20th August, 1965 and were, therefore, liable to pay duty at the enhanced rate of 45% and not at the earlier lower rate of 32%. Inasmuch as the ship had been cleared after payment of duty at the lower rate, it was alleged that there was a loss of revenue amounting to Rs. 1,60,842.39 to the Government and accordingly the show cause memo was given on the basis of short-levy of customs duty amounting to the said sum of Rs. 1,60,842.39. By the said memo the petitioners were asked to show cause against the contentions in the said memo.

4. By their letter dated 22nd February, 1966 the petitioners furnished their explanation denying that there was any short-levy of duty. The petitioners, inter alia, contended that all the statutory requirements had been duly complied with by the Company and the proper rate applicable was that in force on 13th July, 1965. According to the petitioners, therefore, there was no legal basis for the substitution of a different date than the one which had been prescribed by law. It was also pointed out that the Assistant Collector of Customs who made the assessment of duty and allowed amendment of the bill of entry had come to certain conclusion and there was no warrant under the Customs Act for reconsideration of his decision by another officer of the same rank, as this would amount to a correction of the order of the previous officer by another, not of a higher rank, but one of equivalent rank only.

5. The Assistant Collector of Customs gave his decision on 16th March, 1966. Paragraph 1 of the said decision sets out the original demand, para 2 the contentions of the petitioners in reply thereto (though summarised in a some-what haphazard and unsatisfactory manner) and para 3 contains the decision of the Assistant Collector of Customs. The decision is thoroughly unsatisfactory and may be regarded as totally useless. It does not show whether he had understood any contention of the petitioners or their explanation and has applied mind thereto; and it is disgraceful that such officers are permitted to take such important decisions in this unsatisfactory manner, which really creates further work for the appellate forums and really prevent parties from exercising their right of appeal. An appeal is from a reasoned decision. In the appeal the party is required to point out why the process of reasoning is fallacious. But how does a party exercise its right of appeal when there is no reasoning process in the decision All that we have in this order is the bald statement that the demand for short-levy is correct and requires to be satisfied.

6. However, the petitioners were constrained to file their appeal on 28th March, 1966. Subsequently a letter was also sent on 1st September, 1966. In November, 1966 it appears that they paid the amount of Rs. 1,60,842.39 under protest. The petitioners were given a hearing on 22nd April, 1967, after which an order was passed by the Appellant Collector of Customs on 9th August, 1967 holding that the finding of the Assistant collector in regard to short levy made by the previous Assistant Collector was correct in law. The demand was, therefore, confirmed and the appeal rejected. The portion of the appellate order which gives the reasoning after mentioning the facts and the rival contentions may be fully set out :

'Amendment in the Importer's name in the B/E was not occasioned by any error committed in declaring an incorrect name of the importer originally. The ownership of the goods or the title of the goods has passed on M/s. Tigrania Steel Corporation only after 7-9-1965. A B/E was to be noted in the Custom House by the owner or his clearing agent only. So long as M/s. Great Eastern Shipping Company were the owners, the date of filing of B/E in their own name was the material date for purposes of the Customs Act, 1962. But when the ownership passed on to M/s. Tigrania Steel Corporation, the B/E could not be noted in their name on a date prior to their acquiring the ownership of the goods i.e. 7-9-1965. The importation became the owners of the goods. The date of nothing the B/E viz. 13-7-1965 is therefore not the material date of importation for import by M/s. Tigrania Steel Corporation.'

Accordingly to the Appellant Collector, further, the petitioners could be regarded as importers only after they had agreed to purchase the goods, which was on 7th September, 1965, and the rate of duty which they were liable to pay was the one prevailing on the date of the importation which was after this date. According to the Appellate Collector, by this date the rate of duty had been enhanced from originally 32% to 45%. It is important to note that in the appellate order it was not specifically held that the amendment of the bill of entry was improper. But, on the other hand, it appears to be the view of the Appellate Collector that the petitioners became liable to pay extra duty by reason on the amendment, and this is regarded as a consequence of the amendment. According to the Appellate collector, there was no decision of the previous Assistant Collector to assess the duty at the lower rate and the assessment was a mistake which could be corrected subsequently by an officer of equal rank.

7. The petitioners carried the matter in revision before the Government of India, where the matter was considered by the Joint Secretary to the Government of India. One of the contentions urged on behalf of the petitioners was that as the amendment had been allowed to be carried out in the name of the importer in the original bill of entry, the correct rate of duty payable was the one prevalent on 13th July, 1965. It was further contended that this amendment had been allowed and the lower rate of duty properly charged by one Assistant Collector and his decision could not be corrected so to say in the manner in which it was done by another Assistant Collector. Written submissions were also advanced. According to the Government of India, the amendment which was allowed was improper as in its opinion amendment was only permissible to correct an error in legal documents and there was no error in the original bill of entry. According to the Joint Secretary to the Government of India, even if the Assistant Collector has agreed to the amendment of the name of the importer, he was not competent to absolve the proper importer (i.e., the petitioners) from making a fresh declaration and subscribing to the same. In this view of the matter, according to the Government of India, there was no valid entry document in the eye of law and the rate of duty was required to be determined under the provisions of Section 15(c) of the Customs Act. Alternatively the Government of India found that with the amendment, the bill of entry must be regarded as a new bill of entry and, therefore, under Section 15(1)(a) of the Act the date of the amendment would be the relevant date for purposes of assessment to duty.

8. It would thus seem that from stage to stage there is ambivalence in the thinking of the various authorities under the Customs Act although all the three viz., the Assistant Collector, the Appellant Collector and the Joint Secretary to the Government of India have united in upholding the demand for additional money. On various questions such as why there was a short-levy, how the ship was allowed to be cleared with a demand of lesser duty (alleged), on the propriety of the amendment, on the legal consequences of the amendment, different views have been expressed, not consistent with one another. The only consistency to be found in the agreed conclusion is that there is a short-levy which should be recovered from the petitioners. It is not unnatural then that being totally dissatisfied with these orders of which the first was patently unsatisfactory, the petitioners have come to a court of law contending that these authorities had mis-read the statutory provisions, mis-applied them, and not properly appreciated or understood the petitioners' contentions. The petitioners have accordingly prayed that the orders be quashed and the amount of alleged short-levy paid under protest be refunded to the petitioner. It is in these circumstances that the statutory provisions will now be required to be considered and these are the relevant provisions of the Customs Act, 1962.

9. We have in the first place to consider the definitions of the terms 'import' and 'importer' to be found in Section 2(23) and 2(26) respectively of the said Act. It may be mentioned that under Section 2(22) 'goods' would include vessels and under Section 2(25) the definition of 'imported goods' would include the said vessels which was brought into India from a place outside India for the purpose of being scrapped. The definitions of 'import' and 'importer' to be found in the two sub-sections of Section 2 may be fully set out.

'2(25). 'import', with its grammatical variations and cognate expressions, means bringing into the India from a place outside India;'

'2(26). 'importer', in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or any person holding himself out to be the importer;'

10. The charge of customs duty is provided for by Section 12; sub-section (1) of Section 12 provides as under :

'12. (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Indian Tariff Act, 1934, or any other law for the time being in force, on goods imported into or exported from, India.'

11. Sub-section (1) of Section 15 provides for determination of the rate of duty, and the same may be fully set out in view of the decision given by the Government of India viz. that goods will principally governed by Section 15(1)(c).

'15. (1) The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, -

(a) in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods in presented under the section,

(b) In the case of goods cleared from a warehouse under Section 68 on 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.'

12. The action taken by the Assistant Collector of Customs when he issued the show cause notice dated 29th January, 1966 was obviously under Section 28 of the Customs Act, which action could be taken within six months from the relevant date. The procedure for clearance of imported goods is to be found in Chapter VII of the said Act and Section 46 provides for presentation of a bill of entry. The relevant portion of Section 46 may be extracted.

'46. (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed from :

Provided ... .... .... ... .... ..... .... .... ... .... ... ... .... ....

(3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report as the case may be :

Provided that the Collector of Customs may in any special circumstances permit a bill of entry to be presented before the delivery of such manifest or report. (4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods. .. ... .... .... .... .... ... ..... .... .... ...'

13. We now have to turn to certain sections permitting amendment of customs documents. But before setting out Sections 149 and 154 which provide for amendment and correction respectively, brief reference may be made to sub-section (1) of Section 147 by which anything required to be done by the owner, importer or exporter of the goods under the Act may be done on this behalf by his agent. We then have Section 149 which reads as under :

'149. Amendment of Documents. - Save as otherwise provided in Sections 30 and 41, the proper officer may in his discretion authorise any document, after it has been presented in the custom house, to be amended : Provided that no amendment of a bill of entry or a shipping bill or bill of export shall be so authorised to be amended after the imported goods have been cleared for home consumption or deposited in a warehouse, or the export goods have been exported, except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be.'

14. Finally, we have Section 154 providing for correction of clerical errors, and it read as under :

'154. Clerical or arithmetical mistakes in any decision or order passed by the Central Government, the Board or any officer of Customs under this Act, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the Central Government, the Board or such officer of Customs or the successor in officer of such officer, as the case may be.'

15. It is in the background of these provisions that we are now required to consider the grievances of the petitioners and the rebuttal thereof offered on behalf of the respondents.

16. It has been submitted in the first instance by the learned advocate for the petitioners that the act of import was completed when the goods arrived in India and hence occurred a taxable event, with which we are concerned. In this connection I was referred to the observations of a Division Bench of this Court in M. S. Shawhney v. M/s. Sylvania and Laxman Ltd. 77 Bom. L.R. 380. In the aforesaid decision it was held that under Section 12(1) of the Customs Act, 1962, chargeability in respect of levy of customs duty arises when the goods are imported into India. It was held further that by the combined effect of the definitions of the words 'import' and 'India' under Section 2(23) and 2(27) of the said Act, import takes place when the goods are brought into the territorial waters of India. The Division Bench observed that there was nothing in the Customs Act, 1962, to indicate that the chargeability is postponed until a bill of entry is presented. However, it was made clear by the Court that there is a clear distinction between the concept of chargeability in respect of customs duty and the concept of assessment or quantification of the amount payable by way of customs duty.

17. A number of contentions were urged by counsel on behalf of the petitioners which are now required to be considered. It was submitted that the original memorandum under which the petitioners were required to show cause in respect of the alleged short-levy was beyond the time prescribed by Section 28. I found no substance in the said plea as it appeared clear to me that in the circumstances of the case the show-cause memo was issued within the permitted period of six months, which, has to be considered to commence at the earliest from 7th September, 1965 when duty was assessed at the rate of 32 per cent to Rs. 3,75,537.40. It was also contended that the officer who issued the show-cause memo was not authorised to recover short-levy. The learned advocate for the petitioners, however, was not able to explain the basis of such contention, which was merely stated but not pressed. It was submitted that the impugned order of the Assistant Collector suffered from two defects : (1) that it was made in violation of the principles of natural justice and (2) that it was not a speaking order. As far as the latter connection is concerned, it will be required to be upheld. There is some force in the first grievance also. But it must be observed that the position would have been different if the petitioners had come to this Court straight from this order. The petitioners had, on the other hand, filed an appeal and also revision thereafter, in which appeal and revision they had been given personal hearing and even given further opportunity of filing detailed memorandum of appeal and written arguments. The two further orders, the appellate and the revisional, cannot be said to be non-speaking orders and on both counts, therefore, the grievance of complaints of the petitioners, though somewhat valid against the original order of the Assistant Collector, will be required to be rejected bearing in mind the appellate and the revisional orders.

18. Mr. Nain then submitted three propositions for consideration. Before considering these propositions it has to be borne in mind that we are ultimately concerned with the revisional order, since at every stage the authority has upheld the demand on the basis of short-levy on slightly different considerations. Bearing in mind the nature of these orders, the original order of the Assistant Collector which gives no reason would merge into the appellate order and this in turn would be required to be substituted by the revisional order, since it gives a new ground and a new basis of justification for the demand. It is this basis of justification which is required to be considered.

19. According to the learned Joint Secretary to the Government of India, the amendment which was allowed by the Assistant Collector on 7th September, 1965, by which amendment he permitted the name of the importer to be substituted and quantified the duty at Rs. 3,75,537.40, was improper and beyond the scope of what is connoted by the word amendment. According to the learned Joint Secretary, the Assistant Collector by allowing such amendment was not competent to absolve the proper importer from subscribing to the declaration. Accordingly in the view of the learned Joint Secretary, there was no valid entry documents in the eye of law and, therefore, the levy was required to be determined under Section 15(1)(c).

20. Now, every step of this reasoning process can be exposed as being based on a fallacious understanding of their law. On 7th September, 1965 the Assistant Collector, who was the proper officer, had in this discretion authorised the amendment of the bill of entry. As long as that amendment stood and was not set aside by a higher officer having appellate authority over that officer or by the Board under Section 130 (to give only an instance, which section gives to the Board the revisional powers to check the legality or propriety of all decisions of all officers of Customs), the bill of entry as amended was required to be considered and as long as there was a bill of entry amended in my opinion, it was not permissible for any authority, even though higher in status than the Assistant Collector, to consider the bill of entry as non est, improper, and to proceed to consider the goods as imported otherwise than after the presentation of a bill of entry. The process of reasoning to be found in paragraphs 10 and 11 of the order of the learned Joint Secretary is totally perverse. It is not open to the Union of India as long as the amended bill of entry stands to proceed, without rectifying the so-called error of the original Assistant Collector in permitting the amendment, on the footing that it did i.e. of ignoring the amended bill of entry and to consider the goods as having been imported without presentation of a proper bill of entry. By this manner, law and justice have been thrown to the winds and it is impossible to support the assessability of duty under Section 15(1)(c), which course principally appealed to the learned Joint Secretary. Further, in his enthusiasm to support the decision to collect money, the learned Joint Secretary has misunderstood the impact of the word 'amend' and the effect of amendment. He has also not understood the distinction between what is provided in Section 149 of the said Act and what is provided in Section 154. Reading paragraphs 10 & 11 of his order (revisional order), one is left with the feeling that here is not an impartial authority holding the balance even between the Department and the party affected, but one merely seeking to uphold the recovery of money is one manner or another without much caring for the legal niceties of the respective claims and contentions. The fact remains that the petitioners were originally permitted by the Assistant Collector to clear the goods on the footing of the amended bill of entry. On that bill of entry proper duty has been paid. The amendment had been legally sought for and allowed by the officer. As long as the amended bill of entry remained uncorrected, it is not open to the Customs authorities thereafter without taking proper steps to correct the so-called 'error' to say that 'the amendment was not properly allowed and, therefore, you must be regarded as a person who has cleared the goods without a bill of entry'. This would be allowing the Department to take advantage of its own wrong. If there is an error and proceeding upon the assumption that there is an error, the error should be corrected if an appeal lies in appeal or, at any rate, under Section 130 of the Customs Act. Unfortunately the Department did not follow the proper procedure and avail of the available remedies but has gone about in this matter 'to correct' so-called mistakes in a manner which is not permitted to it.

21. This brings us to a consideration of what is contended for in paragraph 12 of the revisional order. What has been observed therein is that after amendment the bill of entry must be regarded as a new bill of entry and this is also by an involved piece of reasoning, a twisted one, which is not supported by any principles applicable to amendment of documents. It is well settled that normally an amendment relates back to its original date. The question here is not whether the officer ought to have allowed the amendment, but, does the amendment which has been allowed convert the bill of entry into a new one presented on the date of the amendment. It was open to the officer concerned to have refused the application for substitution of the name of the petitioners for that of the Company. If he had done so, there were a number of options available to the petitioners. They could have asked the Company to clear the goods under the unamended bill of entry and then taken delivery of the vessel; they could have presented a fresh bill of entry, in which case they might be required to pay duty at the date on which the fresh bill of entry was presented; they could have appealed against the order of the Assistant Collector refusing to amend the company's bill of entry and sought appropriate orders from higher authorities. The petitioners were not called upon or required to exercise any of these options or to choose which course to follows. The original bill of entry which was presented in July, 1965 remained but the name of the importer was substituted. On that bill of entry the goods were allowed to be cleared. Even if the action of the Assistant Collector was, in the view of the Appellate Collector and the Board, erroneous, as long as that action (of allowing the amendment) is not corrected, the amended bill of entry will remain and if the amended bill of entry remains, there is no question of any short-levy of duty. Once the proposition is therefore appreciated, it is realised that the processes of reasoning to be found in paragraphs 10 and 11 and in paragraph 12 of the Joint Secretary's order are both improper and unsatisfactory. It has to be understood by the appellate and the revisional authorities that the matter is not at large. They are not considering the question in the abstract; they are not considering whether on proper application of the Act the petitioners should have paid the duty at 32% or at 45%. They would be concerned with a very limited question viz. whether there was a short-levy on the admitted facts, and the most important admitted fact was that the petitioners had cleared the vessel on the amended bill of entry which had been originally presented on 13th July, 1965. That was not done surreptitiously but openly after seeking and obtaining amendment thereof. On that basis the petitioners could not be regarded as having cleared the goods without a bill of entry, nor can they be regarded as having cleared the goods on a bill of entry presented on 7th September, 1965. These are the two steps of the reasoning processes to be found in the revisional order and both the steps, in my opinion, are sustainable.

22. In connection with the argument that once a document is amended or rectified the original does not exist and it is the amended or rectified document which is required to be considered for all purposes, Mr. Nain referred me to the decision of a Full Bench of this Court in a stamp reference viz. The Chief Controlling Revenue Authority v. The Maharashtra Sugar Mills Ltd., 53 Bom. L.R. 82. The aforesaid Full Bench decision has referred to an English case viz., Craddock Brothers v. Hunt (1923) 2 Chapter 136, where the principle has been extracted at pages 151 and 160 of the report; at page 160 we have the following observations :

'It seems to me that, on principle, if an instrument of whatever nature is rectified, it ought to be treated as if the necessary alteration had actually been made with the pen and had been part of the document at the date of its completion.

23. Mr. Nain also referred me to the provisions of the Code of Civil Procedure pertaining to amendment of pleadings and submitted that ordinarily all amendments would relate back to the date on which the original pleading was presented to the Court. It was pointed out that where a party was substituted or added, there was a special provision in the Limitation Act to counteract this ordinary result and that where there was no such provision the ordinary result must follow, which ordinary result may be summarised in this way that all amendments would relate back to the original date.

24. Mr. Nain also submitted that even under the agreement of sale it was open to the petitioners to have asked the Company to clear the vessel under the Company's bill of entry and they did not do so because the Assistant Collector permitted the petitioners to make clearance after substitution the name of the petitioners on the original bill of entry. Let us now examine that contention. It has been held and would appear to be the correct position in law that by the written agreement dated 21st August, 1965 the property had not passed the petitioners and there was a mere equity in favour of the petitioners. It appears from the appellate order that the balance of the price was paid to the Company by the petitioners on 25th November, 1965. As a matter of fact, in the appellate order it has been expressly held that by the agreement of sale the property in the vessel did not pass to the buyer. It appears that another document was executed on 7th September, 1965 i.e. on the very date on which the amendment has taken place and the vessel cleared. Thus, it was totally open to the two parties viz, the Company and the petitioners to execute the necessary document after the goods had been cleared by the Company, in which case admittedly the duty effective in July 1965 only would have to be paid viz. at the rate of 32%. The Company could thereafter have completed the sale by effecting delivery. The parties completed the sale on the 7th September in view of the amendment allowed and the assessment of duty made at 32% by the Assistant Collector. In view of the amendment allowed, the assessment is in order and there would appear to be no question of short-levy. If the amendment is improper, it was open to the Customs Authorities or the Board to have carried the matter further and corrected the error, if any, of the Assistant Collector. If they chose not to do so, it cannot be disregarded or treated as non est in the way it was done and a claim for short-levy founded on that footing.

25. In this view of the matter, I am not required to give an opinion as to whether the petitioners as purchasers could have without any amendment cleared the goods under the original bill of entry without seeking an amendment thereof. It has been vehemently submitted by Mr. Nain that if the provisions of the Customs Act are properly considered, this course was also available to the petitioners who need not have sought the amendment and could have cleared the goods, although by the date of clearance they might have become liable for payment of duty. This position has been resisted by counsel on behalf of the respondents. As stated earlier, in the view that I have taken it is unnecessary to consider this position although there is much to be said for the submission made by Mr. Nain.

26. Mr. Joshi in his arguments relied very strongly on the requirements as to the bill of entry to be found in sub-section (4) of Section 46 which provides for a declaration to be subscribed by the importer. According to him, the petitioners were the importers falling within the definition of the term in Section 2(26) and it was they who were required to make a declaration at the foot of the bill of entry, which was not made by them and, therefore, it could be contended that there was no bill of entry. Alternatively he submitted that since the name of the importer has been altered, the bill of entry as altered must be regarded as one having been presented on 7th September, 1965 and, it be so regarded, then duty was required to be levied at the rate of 45% and the demand on the basis of short-levy was fully justified. Mr. Joshi forgets that the amendment had not been carried out by the petitioners simply but it had been sought for and had been allowed by the Assistant Collector presumably in the exercise of his discretion. If then there was any technical defect or incompleteness in the bill of entry which maybe found out objectively, it must be presumed that the Assistant Collector had subjectively determined that the bill of entry after the amendment was in consonance with Section 46 and that it did not suffer from any obvious defect. But the short point then is : Are the petitioners to be made responsible for payment of difference in the duty by reason of any alleged error or erroneous action of the Assistant Collector As long as that action is not corrected by following the proper available procedure, the action must be allowed to stand, and, if it stands, it must be given its due effect. It will not be open to another Assistant Collector, an officer equal in rank to the original Assistant Collector, to say that 'in my view the original amendment allowed was improper' or that 'after the amendment the bill of entry became defective since it was not in compliance with section 46' or that 'the date of the bill of entry must be regarded as not 13th July, 1965 but 7th September, 1965'. None of these corrections had been made by the Assistant Collector originally. On 7th September, 1965 none of these steps was available to another Assistant Collector and if they were not available to the Asstt. Collr. subsequently, they were not available to the Appellate Collector or to the Joint Secretary to the Government of India. Neither the Appellate Collector nor the Joint Secretary have appreciated the limitations of their powers. Once the limitations on their power are perceived and it is understood that they are merely concerned with the order of the Assistant Collector deciding the question of short-levy, then it will be realised that he and they in turn were bound as he was and could not exercise any greater power than he had. He could not have questioned the amendment allowed by an officer of equivalent rank. The amendment was binding on him and if it was binding on him it was binding on the Appellate Collector as also on the Revisional authority viz. the Joint Secretary to the Government of India.

27. In this view of the matter I must uphold the contentions of the petitioners and hold that the alleged determination of short-levy made by the Assistant Collector under the order dated 16th March, 1966, which was subsequently upheld in appeal by the Appellate Collector of Customs by his order dated 26th April, 1967 and in revision by the Government of India by its order dated 23rd August, 1972, was improper, done in an impermissible manner; and if that would be so, the orders would be required to be quashed and the amount which paid to Government would be required to be refunded to the petitioners.

28. Accordingly the impugned orders dated 16th March, 1966, 26th April, 1967 and 23rd August, 1972 are quashed and the 1st respondents are directed to refund and repay to the petitioners the amount of Rs. 1,60,842.39 recovered by the 1st respondents in pursuance of the said impugned orders. To the above extent the Rule is made absolute.

29. The respondents will also pay to the petitioners the costs of the petition quantified at Rs. 500/- (five hundred). The writ to be carried out by the 1st respondents by 31st January, 1979.


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