1. M/s. Andhra Cotton Mills filed a revision petition before the Central Government, feeling aggrieved by an order dated 21-11-1980, passed by the Appellate Collector of Customs, Bombay whereby he confirmed the order of the Assistant Collector dated 19-5-1980, rejecting the refund claim of the petitioners therein. This revision petition has since been received by transfer to the Tribunal, by virtue of the provisions of Section 131B (2) of the Customs Act, 1962 (hereinafter referred to as the Act), to be disposed of as if it were an appeal filed before the Tribunal. It has accordingly been taken up as such.
2. The facts giving rise to the controversy, as can be gathered from the two orders of the lower authorities as well as the grounds of revision petition (now an appeal) are to the effect that the appellants imported a consignment of viscose staple, fibre from Canada, by vessel, 'S. S. Mishref. The contention is that this ship had entered the territorial waters of India on 2-12-1978. However, the goods could not be off-loaded at Bombay Port, which fact the appellants attribute to ship's failure to get berth because of congestion in the Docks, during that period, as a result of strike by the workers of the Bombay Port Trust in November 1978, and in view of this situation the vessel after getting itself registered for berthing turn left to discharge other cargo. However, there is some difference here as to the place whereto the ship was diverted because whereas in the grounds of appeal, it is stated that it proceeded to Dubai; according to the letters of the Shipping Agents, it had sailed for Karachi to discharge the cargo meant for that port.
3. What is, however, material for the purposes of the present dispute is that the vessel arrived again in Bombay Port on 9-1-1979 whereafter Entry inwards was made and Bill of Entry filed. The Goods were off-loaded in Bombay Port on or around 13-2-1979, when the Customs authorities charged customs duties in accordance with the Notification which was then in force, having been issued on 5-1-1979 whereby the earlier Notification No. 66 dated 18-3-1978 operative upto 31-12-1978 had been modified. Although the duty was paid as charged, the importers contended that the goods having arrived in the territorial waters of India, in the first instance on 2-12-1978, when the Notification giving total exemption to staple fibre from customs as well additional duty, was in force being Notification No. 4 dated 2-8-1976 as amended by Notification No. 66 dated. 18-3-1978; the duty could not be levied or demanded in terms of the amended Notification issued on 5-1-1979, whereby exemption as to additional duty of customs was withdrawn. They accordingly filed a refund claim, being equal to the amount of duty paid, which was in excess of the amount payable in terms of Notification effective upto 31-12-1978. This refund claim was rejected by the Assistant Collector by order dated 19-5-1980 holding that the original Notification No. 4 of 1976 as amended from time to time, expired on 31-12-1978 whereas the relevant date for the purpose of customs and other duty was the date of filing of the Import General Manifest (IGM) in terms of Section 15 of the Act and that, that having been done after date of expiry of the original Notification, and at a time when the revised notification had come into force with effect from 5-1-1979, the importers' claim for total exemption from duty of customs as well as additional duty, in terms of the earlier Notification, was not tenable.
4. The appellants carried an appeal against this order to the Appellate Collector, contending that the import was complete as soon as the vessel called on Bombay Port on 2-12-1978 in view of the definition of the term "import" as given in Section 2 (23) of the Act read with Sub-section (27), which defines "India" to include "territorial waters", also, with the result that the moment the ship carrying this consignment which was meant to be discharged at Bombay Port arrived into the territorial waters of India, the taxable event took place in terms of Section 12, and the fact that it had to be diverted to some other place, because of failure to get berth, and that too for reasons beyond the control of the importers, was not relevant so as to make them liable to pay duty in terms of the subsequent notification. They further contended that once a vessel carrying dutiable goods enters India, which includes territorial waters of India, it is the duty of the Master of the Ship to file import manifest for the goods, with corresponding obligation on the customs authorities at the Port to insist on the filing of the same, with the result that in case a Ship has again to sail off from that place, an export manifest and entry out-ward? has to be filed. They thus pleaded that the fact that Master of the Ship was allowed to take the vessel again out of the territorial waters of India. without insisting on the formalities, such as filing of export manifest m terms of Section 50 of the Act, could not entail any penal consequence for the appellants, making their goods exigible to duty, which was not payable had the goods been allowed to be off-loaded when the vessel arrived first in Bombay waters, namely, on 2-12-1978.
5. All these contentions, however, did not find favour with the Appellate Collector who dismissed the appeal by his order dated 21-11-1980 holdings that the material dates for the purpose of determining he rate of duty payable, were as contemplated by Section 15 of the Act and that appellants' contention that mere entry into territorial waters of India on 2-12-1978 when the ship again sailed away to Dubai, not tenable, as according to him, the mere act of coming of the vessel at a particular place was not enough to complete the factum of import and what was required was a positive effort to bring the goods into India, accompanied by direction or intention behind it, which intention "must be to land and clear". Holding that that intention was absent S this case, because the ship had made no attempt to wait in Bombay waters for its berthing turn and to discharge the goods, and had come there only to sister its turn and then sailed off to Dubai, the import could not be said to have taken pace, much less completed on 2-12-1978. This event for the first time according to the Appellate Collector, took pace after 5-1-1979, namely, when the ship reached back, and the cargo was discharged after complying with all the procedural formalities, laid down by the Act such as filing of the Sport manifest and performing other formalities before crossing the customs !2X He therefore, rejected the plea of the appellants for being considered to the benefit of exemption notification, which was then prevailing, and which was operative up to 31-12-1978. Except for directing that the countervailing additional duty of customs be calculated in this case at the rate of Rs. 1.32 per kg in terns of Notification No. 8-Cus., dated 5-1-1979 he dismissed the appeal on the principal point, namely, for total exemption from duty and the only relief given was that any amount collected m excess of the rate of Rs. 1.32 per kg. by way of countervailing duty be refunded.
6. The appellants, preferred the revision petition, which is now being treated as an appeal, insisting that the import ought to be taken to have been completed on 2-124978, on which date there was total exemption from duty They made extensive references to various provisions of the Act which would be discussed in their proper context, but the main contention is that Section n of the Act is a substantive provision and the liability to duty has to be determined in relation to the date when the import took place, and that the machinery provisions of Section 15 could not supersede the substantive provisions of Section 12 and that the lower authorities have erred in holding otherwise.
7. Shri K.K. Luthra, Advocate appearing for the appellants, convassed the same contentions as set forth in the grounds of appeal and strenuously argued that Section 12 of the Act was a complete code by itself, so far as durability of the imported goods was to be determined, and that the provisions of the Act particularly the definition clauses, namely, Sub-section (23) of Section 2 read with Sub-section (27) made it clear that the import was complete as soon as any goods were brought into India including territorial waters thereof, from any place outside India and that in view of the fact that there was a complete exemption from duty on the day the vessel carrying these goods entered territorial waters of India for the first time; namely, on 2-12-1978 these goods could not be treated as dutiable goods, and question of applying Section 15 to these goods would not arise 8. He made extensive reference to the terms of contract between the importer and the foreign supplier in this case, placing stress on the fact, that it was clear from the copy of the agreement (page 10 of the paper book) as well the terms of bank guarantee (page 11) that the goods were intended to be discharged at Bombay, and were booked for Bombay, and thus it was adundantly clear from these papers placed in Paper Book 'B' that Bombay was the port of destination. He further contended that it is an accepted position that the vessel did arrive near Bombay Port on 2-12-1978, and registered itself for berthing turn.
He went to the extent of saying that there was not even any conclusive evidence that the ship had sailed away, and that everything was being worked out on conjectures, and assuming that ship had to sail away; it was not because of lack of intention to discharge the goods at Bombay, but on account of congestion in the docks and failure to get berth. He thus urged that factum of physical entry into territorial waters of India on 2-12-1978 would make the import complete as on that date, and that exemption of duty being available on that date, these goods could not be subjected to any levy of customs/additional duty by virtue of its having failed to get its berth on the first date of arrival, when the exemption Notification was very much in operation.
9. On a query from the Bench the learned counsel could not positively give the date of filing of the entry inwards or that of the import manifest, but it was conceded that the ship officially came in the docks on 9-1-1979, and presumably the Bill of Entry was filed subsequent to that date. He, however, reiterated that once the import was complete, the computation of duty is a matter of procedure, and could apply in the case of goods, which were dutiable on the date of import, but not as already urged by him to goods which were totally exempt from duty on the date of the import, as contemplated by the provisions of Section 12 of the Act which he described as containing substantive provisions of law, as opposed to the procedural details laid down by Section 15. He thus contended that Chapter V which pre-supposes that goods ought to be dutiable, would not apply at all in this case and consequently provisions of Section 15 had no relevance.
He went to the extent of saying that there was no taxable event in this case as the goods being not chargeable to duty, they were not "dutiable goods", within the meaning of Section 2(14) of the Act, and consequently neither Section 12 nor Section 15 would apply.
10. He also assailed the order of the Appellate Collector, as opposed to principles of natural justice, inasmuch as he had introduced certain facts which were never within appellant's knowledge such as reference to manifest, or contents thereof, and urged that these observations seem to have been made on some facts which were within the knowledge of the Appellate Collector, to which the appellants did not even have any access. He added that they have been denied inspection of the records even at appeal stage and so facts have crept in the Appellate Collector's order, which the appellants had no means of refuting, and that on that count alone, the order was liable to be set aside. He contended that the facts, which had been introduced by the Appellate Collector such as filing of the manifest by the Master of the ship or contents thereof were such which required verification, and notice to the appellants, and this situation alone called for a remand of the case for verification of the facts as to whether the ship's master on arrival in the territorial waters of India on 2-12-1978, had filed any manifest at all and whether he had sailed away to another port, which was necessary on account of divergent versions ; namely, some time it being stated that the ship had been diverted to Dubai, and at another time that it had gone to Karachi, when there is no documentary evidence in support of either position. He added that in any case, this situation has resulted because of the lapse on the part of the Customs Officers in not having compelled compliance with the provisions of Section 42 of the Act and insisting on the manifest being filed, and again in seeing to it that the ship went out of the territorial waters again after complying with the provisions of Sections 41, 42 and 50 of the Act.
11. He, further urged, that once the goods were brought into India, which included the territorial waters, they acquired the title of "imported goods" on the date of such arrival; namely, 2-12-1978, when they were totally exempt from duty, no further procedural requirement could come into play, inasmuch as the terms of agreement, referred to by him, established that the goods had been brought with the intention of discharging them at Bombay port.
12. On the resumed hearing of the case, he made reference to another Bench decision of the Tribunal in Appeal No. CD(SB)(T) 494/83-D in the case of National Textile Corporation v. Collector of Customs, Bombay, decided on 18-4-1983 and contended that although the appeal was dismissed but observations therein lent support to his pleas, to the effect that in case the goods had been brought in the first instance to the port of destination, and had to be diverted for some unforeseen reasons to some other port, then the position might be different, that prevailing in the said case, where there was no evidence that the goods had at all been brought to or in any way, had come near the port of destination, in the first instance. According to him, this position distinguished his case from the one decided by the Tribunal inasmuch as in the present case there is abundant evidence that the vessel did reach Bombay waters on 2-12-1978, and that this factual position is even confirmed from the observations in the order of the lower authorities.
13. His attention having been drawn during earlier hearing to the Division Bench authority of Delhi High Court in Civil Writ No. 1507 of 1980 decided on May 11, 1983 in the case of Jain Shudh Vanaspati Ltd. v. Union of India &Anr., 1983 ELT 1688 (Del.) wherein all the case law and relevant provisions of law, have been exhaustively dealt with, holding that for the purpose of determining rate of duty, the only relevant and material provision is that of Section 15; the learned Counsel read extensively from the said judgment and contended that the said judgment of the Delhi High Court should not be taken to have conclusively determined the issue. According to him, S.L.P. in respect of this judgment has been admitted by the Supreme Court. Otherwise also, he contended, there was judgment of the Bombay High Court holding the contrary view which was earlier in time and which very much applied to the facts of this case and he made particular reference to the case of H. S. Sawhney v. M/s. Sylvania and Laxman Ltd. (1975) 77 BLR 330 which case, he asserted, was on all fours with the case in hand, inasmuch as there also the goods arrived in the territorial waters of India, when the exemption notification making the goods totally free from duty was in force, but the Bill of Entry having been filed subsequent to the withdrawal of the said exemption notification and the goods having been cleared thereafter; the Customs authorities having insisted on payment of duty in accordance with the principles laid down by Section 15 of the Act, but the High Court of Bombay in the said case held that by reading Section 2(23) and 2(27) together, it was apparent that the import took place when the goods were brought into territorial waters of India, from a place outside India, and that there was a clear distinction between the concept of chargeability, and the concept of assessment or quantification of the amount payable by way of customs duty.
14. The learned counsel urged that there was no reason that the view of the Bombay High Court as subsequently confirmed in two other cases, namely in the case of Synthetics and Chemicals Ltd. v. S. C. Coutinho and Ors. [1981 ELT 414 (Bom.)] and New India Industries Ltd. v. Union of India reported in 1982 ECR 782-D (Bom.), be not taken into consideration. He laid so much stress on the judgment of Bombay High Court in Sylvania Laxman case, as going to the extent of urging that even though the Supreme Court in a case decided at a later date reported as Prakash Cotton Mills Pvt. Ltd. v. B. Sen and Ors. [(AIR 1979 SC 675) (S.C.)] had laid down the principle that requirement of Section 15 could not be ignored simply because goods were imported before a particular notification came into force, but had nowhere made reference to the judgment of Bombay High Court which was already in existence having been given in 1975, and so it could not be said that the Supreme Court had overruled the view held by the Bombay High Court in the said case. According to him, this judgment of the Supreme Court relied upon by the Delhi High Court in the Jain Shudh Vanaspati case was not relevant so far as the case of the appellants was concerned inasmuch as it has a reference to some different situations, and that in any case the interpretation given by the Delhi High Court was contrary to the definitions given in the Act itself.
15. Shri K. Chandramouli, SDR replying for the Department contended that importation took place only when the goods crossed customs barrier, and fortified his arguments by reference to Madras High Court judgment in the case of K. S. Ahmed Shah v. Addl. Collector of Customs, Madras [1981 ELT 153 (Mad)]. Besides urging that the view held by High Court of Delhi was binding on this Bench as the Tribunal was having sitting in the place where the Delhi High Court has its seat. Otherwise also, this judgment of the High Court of Delhi is based on a detailed discussion on the subject, and on the Supreme Court authorities, reported as Empress Mills v. Municipal Committee, Wardha (1983 ELT 341) before the above-quoted case of Prakash Cotton Mills, and also a number of judgments of other High Courts; particularly, a Division Bench of Gujarat High Court reported as 1982 ELT 203 (Prabhat Cotton & Silk Mills Ltd. v. Union of India) and also that of Calcutta High Court in the case of Shewbuxrai Onkarmall v. Assistant Collector of Customs and Ors. [1981 ELT 298 (Cal.)].
16. The learned S.D.R. drew pointed attention of the Bench to a judgment of Bombay High Court also, in the case of Jain Shudh Vanaspati, reported as 1983 ELT 923 which was a case identical to the facts of the present case, where also the ship having arrived in the territorial waters of India on a date when some exemption notification was in force, had been diverted to Karachi without unloading the cargo, and re-entered the Indian waters on a later date, by which time the exemption notification had been withdrawn, and then the question arose whether the import of goods had taken place on the earlier date, when the ship had initially entered the Indian waters or whether the chargeability of duty is to be assessed with reference to the later date And it was held that the chargeability to duty arose only when the vessel re-entered into the Indian territorial waters, and when the cargo was discharged for home consumption.
17. He also repudiated as irrelevant and baseless the allegation that the Customs authorities had connived with the Master of the ship in not insisting on the filing of the import manifest or allowed him to leave the ship without filing the export manifest and without complying with the procedures and provisions of the law as laid down by Sections 41, 42 and 50 of the Act. He further pleaded that Bombay High Court judgments have been over-ruled by a later judgment of the same High Court and the earlier judgment having been critically commented upon by a Division Bench judgment of the Delhi Court; the appellants have no case, and the appeal deserves to be rejected.
18. Shri K.K. Luthra, Advocate for the appellants made a short reply asserting that there was no evidence that the ship having once been brought to Indian waters, had again been taken out and it has to be assumed that the subject goods had arrived in the port of destination on 2-12-1978, when exemption notification was still in force, and as such, the Customs authorities had erred in taking into consideration extraneous factors, and the appellants were entitled to refund of the amount of customs/additional duty charged on the basis of subsequent notification issued on 5-1-1979.
19 We have given very careful thought to the issue involved, which was quite simple, but because of the extensive arguments put forth by the learned counsel, in spite of authorities of Supreme Court and several other High Courts, including the latest judgment of the Division Bench of the Delhi High Court, we have felt impelled to go into the matter quite in detail.
20. We find that the appellants themselves have averred in the appeal that the ship having come to Bombay left again for Dubai which was its place of registration, after getting itself registered for berthing turn. In view of this admission by the appellants themselves, it could not lie in the mouth of the appellants to say that there was no evidence that the ship had sailed away from Bombay or from Indian waters; because once a fact is admitted by the party, no further evidence is required. We further find that the appellants themselves have placed on record a copy of a letter from the Steamer Agents (Page 3 of Paper Book 'A') which has been addressed to the appellants bearing the date 22-12-1980 in which it is categorically stated that after getting her berth turn registered in Bombay on 2-12-1978, the vessel sailed to Karachi because the waiting time in Bombay was about 45 days and so it proceeded to Karachi to off-load the cargo there, and had re-entered the Cutter Anchorage on 9th January, and was brought to Inner Anchorage on 19th January and was allotted its berth on 13th February. It is thus evident that except for the conflicting version as to whether the ship had been diverted to Dubai or Karachi, there is no disputing the fact that it did leave Indian waters and sailed to some place of another country to discharge the cargo there. It is also established from the order of the Appellate Collector that after re-entry on 9th January, 1979, the Bill of Entry was presented and cargo cleared after paying duty on 13-2-1979; the date of entry inwards being 29-1-1979. Although, we do find that Appellate Collector has gone off the tangent in entering into details of the conduct of the Master of the ship or by referring to the factum of import manifest or contents thereof, but nevertheless we do not think that the finding on the basic issue before him; namely, as to the relevant date for the purpose of the import, and calculation of duty, suffers from any infirmity.
21. For, we find, a long catena of judicial authorities in support of the view that mere entry into territorial waters was not determinative of the fact for the purpose of application of rate of duty, and that what was material was the discharge or unloading of the goods on the land mass of India, or what is known as crossing the Customs barrier.
22. Apart from the fact, that we do feel bound by the Division Bench Judgment of Delhi High Court which also happens to be the latest authoritative pronouncement on this subject, otherwise also, we find that this judgment of the High Court is based on the clear enunciation of the principles by the Supreme Court in the two cases, one reported as Empress Mills case (supra) and the other that of Prakash Cotton Mills (supra). There are other High Courts which have uniformly held a similar view in clear and categorical terms, in cases referred to above. For instance, the Gujarat High Court in a Division Bench case (1982 ELT 203) : Prabhat Cotton Mills held in unambiguous terms that the valuation of goods for the purpose of duty, on importation, has to be made at the point of time, when the goods are offloaded on the land mass of India, and not when the ship enters the territorial waters of India, and this they held after taking note of the provisions of Section 12 of the Act, and further that unless the goods are brought into the country for purposes of use, enjoyment, consumption, sale or distribution and are incorporated in and mixed up with the mass of the property in the country, they cannot be said to have been imported or brought into the country, and that it could not' be said that the moment the aircraft landed at the airport or the ship entered the territorial waters of India, importation had taken place. Similar view was held by Calcutta High Court in Shew-buxrai Onkarmall case (supra) and by Madras High Court in the case of K.S. Ahmed Shah (supra) where it was stressed that the process of importation was not complete unless the goods are brought in the country for the purpose of use, enjoyment, consumption, sale or distribution and have been incorporated and got mixed up with the totality of the property in the country, and, or until they are removed from the bonded warehouse, in terms of Section 15(1) (b) of the Act. The Calcutta High Court went to the extent of saying that the expression 'imported into India' had a wide meaning, and "Indian waters" meant "Indian Customs waters", and that it cannot be said that the goods 'imported into India' would mean the goods which merely cross into the territorial waters of India. Similar view was held by Kerala High Court in case : Shri Ramlinga Mills v. Assistant Collector of Customs (1983 ELT p. 65). Delhi High Court also held in an earlier case reported as Union of India v. Khalil Kechrim (1970 Cr.
L.J. 417) where also a Division Bench held that unless the goods are brought into the country for the purpose of use, enjoyment, sale or distribution, they cannot be said to have been imported or brought into the country. It is thus apparent that the judgment of the Delhi High Court in the Jain Shudh Vanaspati cass (supra) is not a solitary authority on the point but is based on a view almost held uniformly by several other High Courts, and has the support of a similar proposition having been propounded by the Supreme Court in two cases. In a very well reasoned judgment, the Delhi High Court has held that provisions of Section 15 particularised the stage at which the rate of duty and tariff valuation are to be determined, and after taking note of relevant provisions of the Act, it was held that the rate of duty will be determined not by the mere entry in the territorial waters but in terms of Section 15 of the Act, and that the import was not complete for physical purposes when the ship entered the territorial waters but only when the goods had been cleared for home consumption, and crossed the Customs barrier, and that this cannot be done without complying with Section 15 of the Act.
23. Their Lordships of the Delhi High Court also took note of the argument that Sections 12 and 15 of the Act pre-suppose that the goods should be dutiable, and that in case the particular goods were exempt from duty at the time of import into India, these two sections cease to be applicable but rejected this contention as untenable by observing that the dutiable lity has to be determined with reference to the provisions of the Tariff Act and any goods which find entry in the Schedule to Customs Tariff Act as dutiable, are to be treated as such, irrespective of the existence of total or partial exemption because existence of the exemption or concessional notifications only make the goods duty free for the period of duration of the said notification, but so long the goods remain covered by the First Schedule to the Customs Tariff Act, they are dutiable goods, and relevant Tariff Heading (39.01 in this case) continues to cover those particular goods and that the goods remain certainly chargeable to duty as held by Delhi High Court in another case; viz., Vishal Andhra Industries v. Union of India and Ors. (in C.W. 720/1982 decided on 10-3-1982) . The only effect of Section 25(1) of notification is to reduce the effective rate of duty leviable. The goods do not cease to be dutiable, with the result that when a question is posed before the Customs authorities as to what rate of duty is to be charged on the imported goods, he has to look first to the Schedule under the Tariff Act, and it is only thereafter that he has to take note of the existence of any exemption notification, whether total or partial, for the purpose of working out the effective rate of duty, which has to be done only with reference to provisions of Section 15 of the Act, because calculation obviously has to be relatable to some date which has been particularised in recognition of different situations, in Section 15.
24. The authority on which the appellants have chosen to fall back, namely, Sylvania Laxman case of Bombay remains the solitary authority on the point but the view expressed therein has to be taken to have been overruled by the Supreme Court in M/s. Prakash Cotton Mills case which happened to be later in point of time and with reference to special provisions of Section 15 of the Act and this would be irrespective of the fact that there is no particular reference to the Bombay High Court in this judgment. The matter is further taken out of pale of any controversy, because even the Bombay High Court, in a situation exactly the same as the case in hand, has held in the latest judgment decided on 20-9-1982 and reported as 1983 ELT 923 (Jain Shudh Vanaspati Ltd. v. S.R. Patankar and Ors.) that the relevant date for the purpose of calculation of duty is when the goods re-enter the Indian waters, and not with reference to the date of their first entry, as they cease to retain the character of imported goods, once they are taken out of the Indian waters.
25. In view of this, the matter ceases to be susceptible to any other interpretation than the one held by the authorities below which view has the sanction of preponderance of judicial authorities. We, therefore, do not find it possible to take a view, different than that held by the lower authorities. The appeal is, therefore, liable to dismissal, and is dismissed accordingly. The appellants shall have the benefit of the little modification allowed by the Appellate Collector qua the rate of countervailing duty, applicable in terms of Notification dated 5-1-1979.