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Shewbuxrai Onkarmall Vs. Asstt. Collector of Customs and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberC.R. 5850 (W)/79
Judge
Reported in1981(8)ELT298(Cal)
ActsCustoms Tariff Act, 1975; ;Customs Act, 1962 - Sections 2(23), 12, 12(1), 15(1), 25, 47, 68 and 111; ;Finance Act - Section 35(1);
AppellantShewbuxrai Onkarmall
RespondentAsstt. Collector of Customs and ors.
Appellant AdvocateR.N. Bajoria and ;P.J. Khaitan, Advs.
Respondent AdvocateAnwar Hossain, Adv.
DispositionApplication allowed
Cases ReferredPrakash Cotton Mills (P) Ltd. v. B. Sen and Ors.
Excerpt:
- .....under the customs tariff act, 1975 (51 of 1975) or any other law for the time being in force on goods imported into, or exported from india'.it is thus seen that customs duty at the specified rates is leviable, inter alia, on goods imported into india. the question which arises for consideration is, what is the meaning of the words 'imported into india' in my view, to give the words their literal meaning would lead to an absurdity because a person may bring goods into india by a ship and may not clear the goods in india arid may re-export it. in that case, would customs duty be chargeable as soon as the vessel arrives in india take another case of an aircraft landing in any air port in this country in course of transit. would customs duty be chargeable for any goods being carried in.....
Judgment:

P.C. Borooah, J.

1. In or about August 1978 the petitioners in these three Rules imported consignments of Soda Ash of light variety from Rumania for their use in their factories for the manufacture of Sodium Silicate. On arrival of the goods at the port of Calcutta, the goods were not immediately cleared for home consumption, but were kept in a bonded warehouse without payment of any duty thereon under the Customs Tariff Act, 1975. Thereafter parts of the consignments were cleared by the three petitioners on payment of the relevant customs duty chargeable on the relevant date.

2. On January 4, 1979 the Ministry of Finance, Department of Revenue issued two Notifications under Section 25 of the Customs Act, 1962 (hereinafter 'the Act') exempting Soda Ash of both the light and dense varieties from the payment of certain portion of the Customs Duty and the whole of the auxiliary duty leviable under Sub-section (1) of Section 35 of the Finance Act. Copies of these two Notifications are annexures 'A' and 'B' to the petition in the three cases.

3. Thereafter the petitioners applied to the Customs Authorities for clearance of the balance of the goods from the bonded warehouses for home consumption under the provisions of Section 68 of the Act claiming the benefit of the two Notifications dated January 4, 1979. When the Customs Authorities declined to give the petitioners the benefit of the said Notifications and demanded the full Customs Duty and the auxiliary duty chargeable, they came up before this Court and obtained the present Rules, and by virtue of the interim orders cleared the goods by furnishing the requisite Bank guarantees.

4. The common question which arises for consideration in these three Rules is whether the petitioners will get the benefit of the two Notifications dated January 4, 1979 Mr. R.N. Bajoria, appearing on behalf of the petitioners, has contended that the words 'imported into India' occurring in the Notifications refers to the time when the imported goods actually crossed the Customs barrier 'and were mingled with and formed part and parcel of the property of the local area, and by virtue of Section 15(l)(b) of the Act the rate of duty which his clients are liable to pay for the balance of the goods, which were cleared pursuant to the Court's order, is the duty which was chargeable on the date when the goods were actually removed from the bonded warehouses. Mr. Bajoria in support of his argument has relied on two decisions of the Madras High-Court, viz. K.R. Ahmed Shah v. Additional Collector of Customs, Madras and Ors., reported in 1981 E.L.T. 153 and K. Jainal Co. v. Union of India, reported in the same journal at page 162. Mr. Bajoria has also drawn my attention to a decision of the Supreme Court in the case of Empress Mills, Nagpur v. Municipal Committee, Wardha, reported in : [1958]1SCR1102 , which has also been referred to in the first Madras decision mentioned above.

5. Mr. Anwar Hossain, appearing on behalf of the Respondents, has contended that the words 'imported into India' mean crossing of the territorial waters of India and the goods having crossed such waters prior to the 4th of January, 1979, the petitioners cannot be given the benefit of the two Notifications. Mr. Hossain further submitted that the Notifications in any event cannot apply to the goods in question which have been warehoused after having been removed from the hold of the ship.

6. Customs duty is levied in accordance with Section 12(1) of the Act which reads as follows :

'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 Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force on goods imported into, or exported from India'.

It is thus seen that Customs duty at the specified rates is leviable, inter alia, on goods imported into India. The question which arises for consideration is, what is the meaning of the words 'imported into India' In my view, to give the words their literal meaning would lead to an absurdity because a person may bring goods into India by a ship and may not clear the goods in India arid may re-export it. In that case, would Customs duty be chargeable as soon as the vessel arrives in India Take another case of an Aircraft landing in any Air Port in this country in course of transit. Would Customs duty be chargeable for any goods being carried in the Aircraft although no Customs clearance is sought for ?

7. Section 2(23) of the Act defines 'import to mean bringing into India from a place outside India'. As seen above, the word 'import' has not been used in isolation either in the charging Section, namely, Section 12 of the Act or in the Notifications in question. The words 'into India' have been used after the word 'import'. That the words 'imported into India' have a wider meaning will also be apparent on a reference to Section 111(d) of the Act which makes a distinction between goods which are imported or attempted to be imported or are brought within India Customs waters for the purpose of being imported.

8. The Supreme Court in the case of Empress Mills, Nagpur v. Municipal Committee, Wardha (supra), explained the scope and meaning of the words 'imported into' and 'exported from' in the following words :-

'By giving to the words 'imported into or exported from' their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting context and history of the clause was not intended. The effect of the construction of 'import' or 'export' in the manner insisted upon by the Respondent would make rail-borne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax on their arrival at the railway station or departure therefrom or both which would not only lead to inconvenience but confusion, and would also result in inordinate delays and unbearable burden on trade both inter State and intra State. It is hardly likely that, that was the intention of the legislature. Such an interpretation would lead to absurdity which has according to the Rules of interpretation, to be avoided'.

9. In the case of K.R. Ahmed Shah (supra) the Madras High Court in construing the words 'import' and 'export' made the following observations :-

'The principles that could be deducted from the above decisions can be summarised as follows :

(1) Goods can be said to be imported to the country only when they are incorporated in and mixed up with the mass of goods in the country.

(2) It cannot be said that the moment an aircraft lands at an international airport in this country the goods are imported and to hold otherwise would create inconvenience confusion and would render the goods which are in the aircraft meant to be carried to other countries subject to the Customs laws of this country.

(3) Once a passenger enters the Customs area and makes a declaration of what all he had brought and does not make any attempt to take the goods across the Customls barrier in violation of the Customs laws of this country, it cannot be said that he had imported or attempted to import any goods contrary to any prohibition imposed by and under the Act or any other law for the time being in force.'

10. In the case of K. Jamal Co. (supra) the same High Court in interpreting the word 'import' observed that the relevant date for the import of goods would be the date of presentation of the Bill of Entry and not the date when the ship arrives in the territorial waters of India.

11. Coming back to the case before us, admittedly the goods were in the custody and control of the proper officer in a bonded warehouse. The petitioners applied under Section 68 of the Act for clearance of the warehoused goods for home consumption. They could not obtain release of the goods unless the proper officer granted clearance under Section 47 of the Act. Therefore unless and until the goods are cleared for removal from the bonded warehouse and become capable of being utilised for the purpose for which the import took place the process of importation into India is not complete. Only when this process is complete the goods become chargeable to duty at the rates then prevailing. As such Section 15(1)(b) of the Act is clearly attracted and the petitioners are entitled to the benefit of two Notifications. Moreover, if the interpretation given to the words 'imported into' by Mr. Hossaip be accepted, Section 15(l)(b) of the Act would become superfluous. It possibly could not have been the intention of the Legislature to enact a redundant Section. Mr. Hossain also accepted the position that in the event the Customs Duty was enhanced before the goods were cleared, the petitioners would have to pay the enhanced duty in spite of the fact that the goods had entered the territorial waters of India long before.

12. The Supreme Court had also in the case of Prakash Cotton Mills (P) Ltd. v. B. Sen and Ors. reported in : 1979(4)ELT241(SC) held the requirements of Section 15(l)(b) of the Act to be mandatory and further held that the requirements of the said Section cannot be ignored on the ground that the goods were imported before the said Section came into force.

13. For the reasons stated above, all these applications succeed and the Rules are made absolute. I direct the Customs Authorities to give the petitioners the benefit of the two Notifications dated 4th of January, 1979 copies being annexures 'A' and 'B' to the petitions.

14. There will be no order as to costs.


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