Decided on July 15,1991

Rishi Packers Ltd. Appellant


K.S. Venkataramani, Member (T) - (1.) THIS appeal is directed against the order dated 25 -1 -1990 passed by the Additional Collector of Customs, Bombay. The facts, in brief, are that on 29 -12 -1989, the appellants presented 3 Bills of Entry for warehousing in respect of 49.5 metric tonnes of Polypropylene. Before the complete procedure for warehousing of the polypropylene quantity of 49.5 metric tonnes could be completed, the appellants, due to urgent need of the material, on 3 -1 -1990 asked their Customs House Agents to clear 33 metric tonnes out of 49.5 metric tonnes of the goods for home consumption instead of warehousing. Therefore, on 3 -1 -1990, the Customs House Agents requested the Assistant Collector (Imports) to cancel the 2 Bills of Entry for warehousing filed on 29 -12 -1989 out of the 3 Bills of Entry so as to enable the appellants to file home consumption Bill of Entry in respect of two other consignments. On 4 -1 -1990, the Assistant Collector, Group II -B, made an endorsement on the Customs House Agents' letter of 3 -1 -1990 to the effect that as there is no change in the rate of duty substitution of Bill of Entry for warehousing by home consumption Bill of Entry may be allowed. On 5 -1 -1990, the Assistant Collector (Imports) allowed this substitution of the two Bills of Entry for warehousing. Home consumption Bill of Entry was, accordingly, filed on 3 -1 -1990. They claimed benefit of Notifications 227/76 and 162/89 seeking partial exemption. On 9 -1 -1990, the endorsement was made regarding noting of the home consumption Bill of Entry after cancellation of the warehousing Bill of Entry vide order of the Assistant Collector (Imports) dated 5 -1 -1990. When the home consumption Bill of Entry was presented to the Appraising Group for assessment on 10 -1 -1990, the Group A.O. objected to the conversion on the ground that the conversion was allowed by the Assistant Collector (Imports) on 8 -1 -1990 whereas the duty rates had changed by issue of Notification 1/90 dated 5 -1 -1990 and Notification 2/90 dated 5 -1 -1990 which increased the duty rates on the goods. The Additional Collector, thereafter, sought to review the order of the Assistant Collector granting the permission under Section 46 of the Customs Act, 1962 for the substitution of the warehousing Bill of Entry by home consumption Bill of Entry. He called for the defence of the appellants, herein. On consideration, thereof, the Additional Collector held that the Assistant Collector (Imports) had allowed the conversion on the basis of no objection granted by the Assistant Collector of the Appraising Group, who had given the recommendation for the conversion on 4 -1 -1990 when there was no change in the rates of duty. The Additional Collector observed that the Assistant Collector (Imports) was not aware of the fact that duty rates had been changed on 5th of January, 1990. The Additional Collector referred to provisions of Section 46(5) of the Customs Act, 1962 which allows the proper officer to permit conversion only when he is satisfied that Revenue is not prejudicially affected and there is no fraudulent intention to defraud Revenue and found that conversion can -not be allowed when one of these conditions is not satisfied.
(2.) APPEARING for the appellants, Sh. Manoj Sanklecha, Ld. Counsel, contended that the Additional Collector was in error in holding the Assistant Collector's order permitting the conversion was not a quasi -judicial order. He referred to the criteria laid down by the Supreme Court in AIR 1959 (S.C.) 107 in the case of Radheysham v. State of Madhya Pradesh, according to which there are three requisites to determine the order to be quasi -judicial that the person must have the legal authority to pass the order, and it should be one determining questions affecting the right of the parties and the person must have the duty to act judicially. The Assistant Collector's order in terms of Section 46(5) of the Customs Act, 1962 has the attributes of quasi -judicial order. Therefore, such an order can be reviewed only in accordance with law by resorting to the review proceedings under Section 129D of the Customs Act, 1962 and the Additional Collector has no such power to review. Therefore, his order is without jurisdiction. The Assistant Collector is an adjudicating authority as per definition under Section 2(1) of the Customs Act, 1962. Further, there are two criteria under Section 46(5) of the Act for allowing substitution, namely, there should be no prejudicial effect on Revenue, and the absence of fraudulent intention. It was argued that both the criteria have to be satisfied for giving permission. The Additional Collector has erroneously interpreted the sub -sec. to read "and" in Section 46(5) as "or". It was, further, submitted that the effective date for consideration of the rate of duty to be applied will be the date of application for conversion under Section 46(5) which, in this case, was on 3 -1 -1990, whereas the Notifications enhancing the rate were issued, subsequently, on 5 -1 -1990. Hence, the increased rate on this ground cannot be applied to the appellants' clearance. On 3 -1 -1990, there was nothing to prejudice Revenue for allowing conversion. The gazette in which the Notifications 1/90 and 2/90 were published were not available in Bombay till 30 -3 -1990 according to the appellants. Therefore, the tanced rate cannot be applied to their Bill of Entry which had been filed earlier.
(3.) SHRI S.K. Roy, Ld. S.D.R. appearing for the Department, contended that filing of the Bill of Entry under Section 46 is not a vested right. Therefore, the case law cited by the appellants which relates to Section 47 is not relevant, according to the Ld. S.D.R., the filing of a Bill of Entry under Section 46 is not mandatory, it was submitted. Therefore, the order of the Assistant Collector did not determine an issue relating to the right of a patty. The Ld. S.D.R., further, submitted that essential question here is not so much the date of publication of the Notification in the gazette or the date of it being made available to the public, but it is a question of determining what is the rate of duty applicable to the imported goods covered by the Bill of Entry filed by the party in terms of Section 15 of the Customs Act, 1962. According to this Section, the rate of duty applicable to the imported goods shall be the rate in case of goods entered for home consumption under Section 46 on the date on which a Bill of Entry in respect of such goods is presented in that Section in the present case when the Bill of Entry for home consumption was presented, the higher rate of duty had come into effect and that rate of duty will have to be applied. This Bill of Entry for home consumption was noted in the Import Department on a date when the higher rate of duty was in force. It was, further, argued that it is not necessary that both the criteria for conversion in Section 46(5) should be satisfied, and if it was insisted upon, it would lead to absurd results. Submissions made by both the parties have been carefully considered. The first question to be determined is whether the Additional Collector's order is without jurisdiction because he has reviewed the quasi -judicial order passed by the Assistant Collector. Examining this question, firstly, it is to be noted that filing of Bill of Entry is not mandatory because Section 46 requires importer to file a Bill of Entry under that Section. Section 48 covers the consequential situation in case of goods not cleared, warehoused or transhipped within two months after unloading. See Bombay High Court decision Chowgule and Co. v. U.O.I. -1988 (38) E.L.T. 401. The Department, therefore, under the law need not pursue the importer and compel him to file a Bill of Entry. Therefore, one of the attributes of quasi -judicial decision is absent in the passing of such an order by the Assistant Collector under Section 46. Another issue to be determined is whether the Additional Collector's order amounts to a review. This question has also to be answered in negative because review can always take place only on the basis of the facts as they were existing before the adjudicating authority and not on fresh facts. In this case, on the other hand, it is on record, that there was a fresh fact, namely, the issue of Notifications 1/90 and 2/90 enhancing the rate of duty which was a material not before the Assistant Collector when he passed his order allowing conversion. Therefore, on such fresh facts, if the Additional Collector was to pass an order, such an order would not amount to review by that authority of the Asstt. Collector's order. The further question to be answered is regarding the date from which the higher duty in the Notifications are to be applied. The appellants' claim is that the gazette containing these notifications was not available to them until 30th March, 1990 and, therefore, the higher rate cannot be applied. However, the law laid down in this regard is that the higher rate will be applicable from the date on which the gazette containing the Notifications is made available to the public. It would mean that it will not depend on the date on which a particular importer got to know of it. In this case, the goods have been assessed to duty in February, 1990 and even according to the appellants, the Notifications 1/90 and 2/90 had been published in the Excise Law Times on 1 -2 -1990. Therefore, it can be said on evidence that the Bill of Entry is assessed to duty at the higher rate at the time when the Notification had become available to the public. Moreover, the question is essentially one of applying the provisions of Section 15 of the Customs Act to the Bill of Entry filed for home consumption and it is on record that the Bill of Entry filed for home consumption was noted on 5 -1 -1990 when the increased rates have been notified. Therefore, in such a view of the matter, there is no reason to interfere with the order passed by the Additional Collector. The appeal is, accordingly, rejected.;

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