M JAMAL COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal directed against the order of dismissal by a Single Judge of this Court, in W.P. No. 3422 of 1979.

(2.) AS per the First Schedule, Sec. 15.07 of the Customs Tariff Act (51 of 1975), palmolein is subject to standard rate of duty of 60%. By Notification No. 129, dated 1-.7-.1977, the Government of India exempted palmolein oil from the whole of the Customs duty leviable thereon as specified in the said First Schedule to Act 51 of 1975. While so, the appellant imported two consignments of palmolein which came to India by vessel s.s. Nikoley Somashke. The vessel came to Madras first on 22-.2-.1979 and was not permitted to discharge the cargo. It went to Kakinada, left that place on 27-.2-.1979 and came back to Madras on 2-.3-.1979. The entry inward was granted on the same date, viz. 2-.3-.1979, and the goods were unloaded the bill of entry was filed by the appellant on 13-.3-.1979. In the meanwhile two notifications were issued by the Government of India. AS per Notification No. 42, dated 1-.3-.1979, for palmolein and some other oils exemption was granted in respect of (a) so much of that portion of the duty of customs leviable thereon which is specified in the First Schedule as is in excess of 12.5%ad valoremand (b) the whole of the additional duty leviable thereon under S. 3 of the Customs Tariff Act. On the same date, 1-.3-.1979 another notification bearing number 63 was issued as per which Notification No. 129, dated 1-.7-.1977 referred to above granting entire exemption to palmolein oil was rescinded along with few other notifications.

(3.) THE above principle have been followed in several other decisions likeNew India Industriesv.Union of India, (Single Judge) 1981 TaxLR 2763Sundaram Textiles Ltd., Maduraiv.Asstt. Collector of Customs, Madras(Single Judge) 1983 ELT 909 (Madras) andKrishna Oil Cake Industriesv.S.R. Patankar, Asstt. Collector of Customs, 1983 ELT 2153 (Bombay). THE decision inSynthetics and Chemicals Ltd.v.S.C. Coutinho and others, 1981 ELT 414 (Bombay) has applied the same principle, but stressed in addition the point that the exemption on the date of importation should be total. THE above principle was applied inNew Chemi Industries Pvt. Ltd.v.Union of India, 1981 ELT 920 (Bombay). It was, in fact, held by a Single Judge that if the goods were totally exempted on the date of their entry within the territorial waters the duty cannot be recovered merely because such total exemption stands withdrawn on the date of clearance. But, if there was only partial exemption on the date of importation and no exemption on the date of clearance, the goods would attract the full normal duty leviable as per Sec. 15 of the Act. THE rationale of this decision is that the goods were dutiable as per Sec. 12 and that the quantification was to be made as per Sec.15. In this manner this decision follows the principles laid down inSylvania's1975 Bom. L.R. 380 case. but the decision inAll India Medical Corporationv.A.R. Almedia, 1981 ELT 929 (Bom.), by a Single Judge of the Bombay High Court goes a step further. After observing that the concept of chargeability to duty and assessment of amount payable are distinct, the learned Judge held that if no exemption notification was in force on the date of importation of goods into the territorial water of India but in operation on the day the bill of entry was filed, the goods would still be eligible for benefit of exemption, whether such exemption was total or partial. If the exemption was only partial the goods were liable to duty as per Sec. 12 and therefore, duty should be levied as per the rate fixed by Sec. 15, as per the principles laid down and followed in the decisions referred to above. But in this case the learned Judge departs from these principles his decision in saying that Sec. 15 imposes duty as in force on the date of filing of bill of entry but it does not mean that it can ignore the exemption available on the date of import but not in force on the date of clearance. As per the decision chargeability is over as soon as the goods are imported into the territorial waters of India, and such chargeability would also include the amount of tax leviable so that the exemption whatever total or partial as it was on the date of the import ensures to the importer. It is thus seen that while all the previous decisions attribute to Sec. 12 the rule of chargeability and to Sec. 15 the role of quantification this last decision completely ignores Sec. 15.