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.;