V.T. Raghavachari, Member (J)
1. The respondent, M/s. T. Gulam Mahamood Assadi and Sons presented shipping bill on 1.9.1981 for export of Coffee per S.S. Amado. On 2.9.1981 the shipping bill was amended to substitute the name of S.S. Macol Ace in the place of S.S. Amado. The duty was paid on 5.9.1981. The goods were shipped per S.S. Macol Ace, entry outwards for the said vessel being granted on 14.9.1981. Subsequently the respondents presented a refund claim for refund of the duty on the ground that on 10.9.81 the export duty on coffee was abolished. This was rejected by the Assistant Collector under his order dated 16.10.81. An appeal against the said order was allowed by the Appellate Collector under order dated 24.7.82. It is against the said order that the Collector of Customs has preferred the present appeal.
2. We have heard Shri G.V. Naik, Jt. CDR for the appellant Collector and Shri Sushil Dutt Salwan, Advocate for the respondents.
3. The dates relevant for consideration of the issue before us have been set out earlier. The reason given by the Assistant Collector in his order for rejection of the claim is as follows :
"There is no provision in the Customs Act, 1962 to the effect that for the purpose of Section 16 of the Act, the date in which a shipping bill is amended shall be considered as the date on which the shipping bill is presented. The shipping bill in this case was filed on 1.9.1981 and duty on Coffee was abolished only with effect from 10.9.1981. The relevant date for determining the rate of duty is therefore the date of filing of the shipping bill and not the date of amendment of vessels name in the shipping bill or the date of grant of entry outwards to. the amended vessel. The levy of duty is therefore in order and no refund is due."
The Appellate Collector held to the contrary on the ground that under Section 16 of the Customs Act, 1962 it is the date of grant of entry outwards that shall be deemed to be the date of the presentation of shipping bill when the shipping bill had been presented even before the said date of entry outwards and therefore date of presentation of shipping bill in the present instance should be deemed to have been 14.9.1981 only and since by that time export duty on Coffee stood abolished, the duty already collected was laible to be refunded.
3. In the appeal the Collector questions this conclusion of the Appellate Collector on the ground (vide grounds 4 to 7 in the grounds of appeal) that the provisions of Section 16(1) do not cover cases where the name of the vessel declared originally in the shipping bill was amended subsequently and that the amendment would not necessarily amount to presentation of a fresh shipping bill, Shri Naik urges this ground in support of the appeal.
4. Shri Naik himself has referred us to the decision of the Supreme Court in Gangadhar Narsinghdas Agarwal v. P.S. Thrivikraman and Anr. (1983 ELT 1491 SC). In that case the shipping bill was presented on 1.8.66 and entry outwards for the vessel was also granted on 1.8.66. But the vessel actually arrived at 23.20 Hrs. on 2.8.66 and arrived at the inner harbour on 3.8.66 at 07.50 Hrs. and loading commenced on 3.8.66. On 2.8.66 duty at Rs. 10/- per tonne was imposed under a notification. The Customs authorities held that by virtue of the provisions of Section 16(1) of the Act the shipping bill shall be deemed to have been presented at the earliest on 3.8.66 when the vessel arrived and since by then export duty had been levied the exporter was liable to pay the said duty. The Supreme Court rejected this contention and observed that Section 16 provided only for one fictional date that being the date of grant of entry outwards if the shipping bill had been presented before that date. The Supreme court rejected the contention of the Department about another fictional date, that being the date of arrival of the ship. The Supreme Court observed that Section 16 did not provide for any such fictional date to speak of the fictional date only in relation to the order the date of entry outwards was granted.
5. We are of the opinion that applying the ratio of the Supreme Court decision cited supra the respondents are correct in their contention that this appeal should be dismissed. We find no warrant in the provisions of the Act in support of the contention raised in the appeal that when an amendment had been allowed in the shipping bill the proviso to Section 16(1) would have no relevance with reference to the fictional date of shipping bill as provided in Section 16. The proviso to Section 16(1) speaks of the date of entry outwards of the vessel by which the goods are to be exported. In this case the goods were to be exported by S.S. Macol Ace only and not by S.S. Amado. Therefore, under the proviso to Section 16(1) it was the date of entry outwards for S.S. Macol Ace that would be relevant since admittedly the shipping bill had been presented, and also amended, prior to the said date. Therefore, following the decision of the Supreme Court we hold that duty was to be determined only with reference to the rate prevalent on the date of the entry outwards i.e. 14.9.1981. Admittedly by that date the goods have become free of duty. We, therefore, hold that the order of the Appellate Collector was correct and accordingly dismiss this appeal.