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Surendranath Nundy (P) Ltd. Vs. Assistant Collector of Customs for Exports and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberCivil Rules Nos. 1893-1894(W) of 1973
Judge
Reported in1979CENCUS250D,1987(27)ELT428(Cal)
ActsCompanies Act, 1956; ;Central Excise Act, 1944; ;Customs Act, 1962 - Sections 12, 17, 17(3), 17(4) and 142; ;Indian Tariff Act, 1934; ;Constitution of India - Article 31(1)
AppellantSurendranath Nundy (P) Ltd.
RespondentAssistant Collector of Customs for Exports and ors.
Excerpt:
customs act, 1962 - sections 12, 17, 50 and 51--central excise rules, 1944--rules 158 and 185--item 24 of the second schedule of the customs export tariff--export duty on unmanufactured hookah tobacco. - .....be specified under the indian tariff act, 1934 or any other law for the time being in force, on goods exported from india. the petitioner has further stated that the indian customs and central excise tariff shows the rates of import one export duties on goods either imported into or exported from india and in item 24 of the second schedule of the said customs export tariff, the rate of export duty, to be assessed on tobacco unmanufactured, is .75 p per kilogram. the petitioner has further contended that under government of india, ministry of finance, department of revenue and insurance, notification no. 137-customs dated 23rd june, 1966 the central government exempted tobacco manufactured falling under this item viz. item no. 24, from so much of the duty of customs leviable thereon as.....
Judgment:
ORDER

Manashnath Roy, J.

1. In this Rule, the petitioner Surendra Nath Nundi Private Limited, which is a Company incorporated under the Indian Companies Act, 1956 and carries on the business of tobacco in Calcutta and other places of India, in accordance with the provisions of Central Excises and Salt Act, 1944 and the Rules made thereunder (hereinafter referred to as the said Act and the said Rules) and also carries on business of exporting tobacco to foreign countries according to the provisions of the Customs Act, 1962 (hereinafter referred to as the said 1962 Act), has impeached the determination dated 15th March, 1973, made in revisional application filed against the appellate Order in Annexure 'E', which is dated 30th July, 1971.

2. The petitioner has stated that it submitted the shipping bill for export of 166 bags of Hookah unmanufactured tobacco to Colombo for ultimate movement to Maldives island, on due furnishing of all necessary informations and particulars, including the invoices to the Customs authorities for examination and assessment of export duty on the consignment. It has been alleged that in the shipping bill and the concerned invoices the petitioner specifically mentioned the gross weight and net weight of the unmanufactured tobacco contained in those bags. The net weight in fact has been stated, was specifically mentioned as 8270.700 Kgs., in the concerned Shipping bill and the invoice. It has also been stated by the petitioner that other particulars including the value of the goods in those documents, was supplied and duly filled in. It has been contended that under the said Act of 1962, it is the function, duty and jurisdiction of the Customs authorities to assess the amount of export duty, which the exporter is required to pay, before the goods were declared and were allowed to be exported. In fact, there is not doubt that goods were allowed to be exported only on payment of the duty as assessed. It appears that the exporter in the instant case, the petitioner, had nothing to pay with the assessment of the export duty, excepting the furnishing of all information and documents of export. Section 12 of the said Act of 1962 deals with the dutiable goods and lays down that :

(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, and

(2) all the provisions of the said Sub-section (I) shall apply in respect of (a) all goods belonging to the Central Government; and (b) all goods belonging to the Government of a state and used for the purposes of trade or business of any kind carried on by, or on behalf of, that government, or of any operations connected with such trade or business; as they apply in respect of goods not belonging to any Government.

In respect of the said Section 12, the petitioner has stated that the duties of the Customs were and are to 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 exported from India. The petitioner has further stated that the Indian Customs and Central Excise Tariff shows the rates of import one export duties on goods either imported into or exported from India and in item 24 of the Second Schedule of the said Customs Export Tariff, the rate of export duty, to be assessed on tobacco unmanufactured, is .75 P per kilogram. The petitioner has further contended that under Government of India, Ministry of Finance, Department of Revenue and Insurance, Notification No. 137-Customs dated 23rd June, 1966 the Central Government exempted tobacco manufactured falling under this item viz. item No. 24, from so much of the duty of customs leviable thereon as is in excess of the duty leviable @ 20% ad valorem. There is no disoute about the rates as mentioned above or the tariff and notification as quoted.

3. It has been stated further by the petitioner that after examination of all the necessary particulars as mentioned in the invoice and the shipping bill, the Assistant Collector of Customs passed the consignment for export and issued necessary orders and port clearance for shipment of the concerned goods and thereafter, the goods were shipped by S.S. Millereve The petitioner has further alleged that such shipment by the concerned vessel was made under M.R. No. 23 dated 28th July, 1969 and thereafter, on 10th November, 1970 i.e. long after the shipment of the goods. The Assistant Collector concerned issued a show cause notice to the petitioner and thereby demanded an extra duty of Rs. 2032.19P. alleging that the same was short levied. As no payment was either made or a reply was given admittedly, a further demand by the said Officer was made on 24th March, 1970 and this time the demand, instead of Rs. 2032.19 as shown originally was shown as Rs. 2429.38. After this, the petitioner replied to the show cause and contended inter alia amongst others that there was no wrong computation of assessable value done or made by it in the shipping bill and that the duty was duly and appropriately assessed by the officers of the respondents, after due and necessary check up and examination. It was contended that only after due satisfaction, after such check up, the Assistant Collector of Customs concerned, assessed the amount of duty, which was also paid by the petitioner in respect of the goods as covered by the shipping bill. It was also averred that there was no wrong on the part of the petitioner and in fact there was no short levy of customs duty in the shipping bill by virtue of any wrong declaration of assessable value by the petitioner, which could ultimately lead to further realisation of any extra duty. In view of the above, the demand as raised, was 'contended to be unauthorised and amounted to reassessment of what was already assessed by the authorities concerned at the initial stage.

4. It has also been contended by the petitioner that the state of personal hearing, the stand as mentioned hereinbefore, was reiterated before the Assistant Collector of Customs concerned, but he without considering the reply and the submissions as made confirmed by his order dated 10th November, 1970, the demand of extra duty which amounted to Rs. 2429.38 and directed the petitioner to pay the said sum within 14 days and in default threatened it with action under Section 142 of the said 1962 Act. Being aggrieved by such determination the petitioner duly took the statutory appeal and the same was heard on deposit of the amount as claimed. The appeal was, however, rejected by the -impugned order dated 6th July 1971. From such determination, the petitioner moved-in revision which was also unsuccessful. The revisional order is in Annexure 'F' to the petition.

5. The petitioner was admittedly assessed at 20% ad valorem on the value of 166 bags of unmanufactured tobacco under the tariff as mentioned hereinbefore, although It contended that it was liable to pay only .75 paise per kilogram, in terms of the said tariff. It has been contended by the petitioner that without the authorities concerned acted illegally and without jurisdiction in making an assessment of 20% ad valorem, as a result whereof much in excess of duty actually payable, has been realised from the petitioner. It has also been contended that the demand for further export duty of Rs. 2032.32 or Rs. 2429.38 was alsowithout jurisdiction and illegal and the more so when the Government of India in its notification No. 137, as referred to hereinbefore, exempted specifically tobacco unmanufactured falling under item No. 24 of Second Schedule of export tariff, from so much of the duty of Customs leviable thereon as in 'excess of the duty leviable @20% of the value of goods, then only 20 per cent of the value of the goods is to be levied as export duty. The petitioner has also alleged that the Customs authorities realised more than what was leviable under the Customs tariff, although the weight of the tobacco was specifically mentioned in the documents for export. These apart,' the petitioner has contended that the realisation of the excess duty prior to the decision of the appeal and revision by the Assistant Collector of Customs and others was arbitrary, irregular, illegal and contrary to the said Act of 1962. It has been submitted that the assessment of duty having been made finally in terms of Section 17 of the said Act of 1962, any further assessment or re-assessment under Section 17(3) or (4) of that Act, in the absence of a wrong information in the invoice, the shipping bill and the Bank's certified invoice produced by the petitioner, would be without jurisdiction and not maintainable under the provisions of the Act. In view of the above, it has been stated by the petitioner that the action of the authorities concerned in the instant case, was not only illegal and without jurisdiction, but they have acted in excess of their jurisdiction in assessing the export duty on the value of goods and realising the same from the petitioner. It has been specifically contended that the demand for further amount of duty was also illegal and without jurisdiction, apart from the fact that since the petitioner by such illegal, irregular and void demand has been deprived of property without the authority of law, the impugned assessment and levy of duty would also be violative of Article 31(1) of the Constitution.

6. The answering respondents in their return to the Rules, which has been filed through Kashi Nath Mitra, Assistant Collector of Customs for Export and has been affirmed on 17th February, 1974, have not denied the filing of the shipping documents as mentioned in the petition. But they have denied the validity of the contents of those documents and specifically the information regarding the correct value of the goods. It has been contended by them that the petitioner did not furnish the correct information regarding the correct value of the goods in those documents. They have further denied the statement of the petitioner that it has been disclosed duly in the shipping bill, the net weight and also disputed the correctness of the other particulars. As mentioned hereinbefore, it has been specifically contended by the respondents that the value of the goods as stated by the petitioner, was not correct. The answering respondents have not also, (in fact they could not) denied the entries in item 24 of the Indian Customs and Central Excise Tariff or the notification of the Government of India as mentioned hereinbefore, but has contended that the points which are now sought to be argued by the petitioner, were never raised either at the assessment stage or at any stage of the appeal or revision. In fact, it has been alleged that the petitioner agreed at all level and at all time that the assessment of duty of 20% ad valorem was correct. This fact of course has been denied by Mr. Burman appearing for the petitioner in this Rule. It has been stated by the answering respondents that the statutory rate of duty at the relevant time was .75 p. per kilogram under export tariff item No. 24. But by virtue of exemption notification No. 137 as mentioned above, the rate of duty was lowered down. They have stated that by such notification, the Central Government exempted tobacco unmanufactured i.e. (goods in the present case) from so much of the duty of customs leviable thereon as is in excess of the duty leviable, @ 20% ad valorem and the duty in the instant case was charged on the basis of the said exemption notification. The respondents have further contended that the actual construction of the concerned notification should be that if the duty on calculation, on the basis of weight (i.e. .75 paise per kilogram), comes lower than that if calculated at 20% ad valorem, the same should be calculated (d 20% ad valorem on the basis of exemption notification.

7. Mr. Burman contended firstly, that the duty as assessed, was not only arbitrary, excessive and without jurisdiction, but the same was illegal and irregular and since such levy was not in accordance with law or the same was levied at a rate higher than what was leviable under the customs tariff, the petitioner was not liable or obliged or cannot be made to pay the same. In that view of the matter, he also submitted that since the demand as made, was not in accordance with the sanction of law, the same was also violative of Article 31(1) of the Constitution of India. These apart, M. Burman further submitted that on the facts the case in this proceeding was not a case of short levy but really a case of re-assessment and such re-assessment was not permissible or possiblewhen there was no laches or wilful default on the part of the petitioner to make appropriate declaration in respect of weight, quantity and value of the goods shipped and such particulars were duly checked and verified by the proper officer before granting the necessary sanction for the export. It has also contended by him that the proceedings as initiated being vague and indefinite, was also bad, void and improper.

8. On the pleadings and the records as produced, there is no doubt that the petitioner duly filed the Return in A.R. 4 form which is kept, maintained and used under Rules 158 and 185 of the Central Excise Rules for goods to be exported by sea in terms of the said 1962 Act and the particulars were given by the exporter viz., the petitioner in this case duly in terms of Sections 50 and 51 of that Act.

9. In view of the above Mr. Burman's submissions that there was no default or any laches or any wilful neglect on the part of the petitioner, in complying with the obligations under the said 1962 Act or the Rules framed thereunder, are of substance. The petitioner was not at all, in view of the facts in this case, responsible for the mis-description or wrong-description as alleged now and since such descriptions, as given by them were duly verified and checked in the manner as indicated above and accepted, there was no further liability. There cannot be any doubt that a person cannot be brought to tax without the due authority of law and as such when the petitioner claims to be entitled to have the benefit of item No. 24 as mentioned hereinbefore, then such claim should be, in my view, considered in accordance with the submissions as made in this petition. There has of course been some oblique reference to the claim as made now, and the consideration thereof in the order under reference, but they in my view, are not complete. Thus, this Rule should be made absolute and 1 order accordingly.

10. The Rule is thus made absolute. There will be no order as to costs. This case will now go back before the respondent No. 1 for determination of the claim of the petitioner on the basis of the rate as mentioned in item No. 24 of the tariff viz., @ .75 paise per kilogram or un-manufactured tobacco as mentioned above. The respondents would be entitled to check and consider such evidence that would be led and would also be entitled to consider the petitioner's case in defence and also to pass appropriate orders in accordance with law.

11. From a reference to the impugned order, it would appear that there was another proceedings which was disposed of by the same determination and that other proceeding is the subject-matter in Civil Rule No. 1893(W) of 1973. Since the facts in these two cases and the points of law as involved, are the same, the order which have proposed in Civil Rule No. 1894(W) of 1973, would also govern Civil Rule No. 19 83(') of 1973.

12. The prayer for stay of operation to the order, as made, is refused.


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