GANGADHAR NARSINGDAS AGRAWAL Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This is an application duly amended by the applicant Gangadhar Narsingdas Agrawal for the issue of a writ of certiorari or a writ in the nature of certiorari or other appropriate writ, direction or order under Article 226 of the Constitution, against the respondents. The prayer is to quash the 'show cause' notice dated 28th January 1967 demanding the export duty of Rs. 98,044/- on 9804.40 metric tonnes of iron ore shipped on S. S. 'Adrenode' on 3rd August 1966 at the rate of Rs. 10/- per metric tonne. This demand was later confirmed by an order dated 19th April 1967. The applicant was informed that the duty levied with effect from 2nd August, 1966 would be recovered under Section 142 of the Customs Act, 1962 (hereinafter referred to as "the Act"). The prayer also is to quash the said order and restrain the respondents from recovering the export duty. The respondents impleaded are (1) The Assistant Collector of Customs; and (2) The Union of India. The applicant had filed a similar application earlier which was rejected on technical grounds on 3rd April 1967.

(2.) Broadly stated, the case of the applicant is that on 30th of July 1966 Messrs Hiralal and Company agents of the vessel 'S. S. Adrenode' gave entry outward application in the office of the respondent No. 1. In that application they asked for entry outwards to this vessel, to load iron ore cargo Yawata or Tobato, Japan. They undertook to furnish all other papers within 24 hours of the arrival of the vessel. The expected date of arrival of the vessel from Cochin was intimated by them as 2nd August 1966. The respondent No. 1 permitted the agents the same day to ship the cargo of iron ore on board the vessel. The applicant then presented shipping bill in triplicate dated 26th July 1966 on the 1st of August 1966 for export of 10, 160 metric tonnes of iron ore in bulk. The iron ore was entered for export and a clearance order was given the same day. There was no export duty leviable in respect of iron ore on this day and therefore an endorsement was made on the shipping bill that the goods were E. F. (Export free). On 2nd August 1966 in terms of the notification S. O. 2316 dated 2nd August 1966 issued by the Central Government in accordance with the provisions of Section 4A of the Indian Tariff Act 1934, export duty was levied on 'lumpy iron ore'. The vessel berthed at Mormugao Port on 3rd August 1966. The respondent No. 1 informed the applicant that he was liable to pay the export duty levied under the said notification. It was pointed out on behalf of the applicant that as the order for entry outward was made on 30th July 1966 and the shipping bill was presented on 1st August 1966 therefore the export duty levied under the said notification was not payable for the iron ore permitted to be shipped. On behalf of the applicant reliance was placed on Section 16(1)(a) of the Act in support of non-liability.

(3.) The case of the respondents, briefly stated, is that on 30th July 1966 the agents of the vessel presented entry outwards appll on behalf of the master of the vessel. They were permitted to ship the cargo of iron ore for the sake of convenience as was the practice in anticipation of the arrival of the vessel. This permission is not an order granting entry outwards to the vessel; in any case it is not an entry outwards of the vessel for the purposes of the proviso to Section 16(1). The vessel arrived on 3rd August 1966 and therefore the export duty levied with effect from 2nd August 1966 is payable under the said notification. The date of entry outwards of the vessel could not be earlier than the date of arrival of the vessel. The shipping bill was presented before the date of entry outwards of the vessel and hence in accordance with this proviso, it must be deemed to have been presented in any case at the earliest on 3rd August 1966 when the vessel arrived. The material date for the purposes of the export duty is not 1st August 1966 but 3rd August 1966. The applicant was informed that he was liable to pay the export duty and this demand had the authority of the law.