Judgment:
S.K. Desai, J.
1. The memo of appeal which is filed by the Union of India and the Asstt. Collector of Customs makes a very sorry reading. In ground (a) of the memo of appeal it was stated as follows (5th line),.i.e. the Respondents herein, in such blank terms.
We fail to understand what the word 'blank' denotes. Probably the draftsman may have contemplated the word 'blanket' for the word 'blank'.
Since we have dealt with the blank in ground (a), we find the first sentence (the only sentence) constituting ground (g) making no sense. This is because in the 8th line we find a blank over which a line is put which converts a ground which would make sense if a date had been put there into one which makes no sense. We fail to understand how the 3rd Asstt. Master has passed the said memo of appeal; perhaps she was pressurised by the fact that the Union of India was the appellant.
2. We now come to ground (e). The first part of ground (e) as it stands reads as under:
That the learned Judge failed to appreciate that the respondents herein have admitted that the vessel carrying the said goods was granted final entry on 26th March 1990 i.e. after the date of the budgetary provision, wherein the new notification bearing No. 87/90-Cus. dated 28th March 1990 amended the basic custom duty as mentioned in para (a) of the Notification bearing No. 103/81-Cus, from Nil to 25% as per the provisions of Section 15(1)(a), read with proviso thereto, of the said Act...
In the first place the date 28th March is obviously a mistake for 20th March. As the ground as it stood made good sense, we asked the Counsel appearing for the Union of India, i.e. the Appellants, as to whether the respondents (original petitioners) had admitted that the vessel was granted final entry on 26th March 1990 which would be after the correct date of the notification viz., 20th March 1990. He sought instructions from the Asstt. Collector of Customs and after taking instructions he was constrained to accept the position that the expression 'respondents have admitted' was erroneous since the respondents to the memo of appeal had not admitted anywhere that the vessel was granted final entry on 26lh March 1990. Mr. Shah was unable to point out any part of the record viz., the petition or the affidavit in reply filed in the contempt motion which would show that the vessel was granted final entry on 26th March 1990. Ultimately, Shri Shah stated to the Court that the ground was based on the notings of the officer of his Department. This means either that the memo is extremely casually drafted or what is worse that a false suggestion is sought to be deliberately made.
3. We now come to ground (h). The second sentence of the said ground reads as under:
In any case, in view of the said judgment and order in the case of M/s. Wallace Flour Mills Company Limited, the Appellants herein are entitled to the time of importation into the territorial waters of India.
This sentence makes no sense and it is clear that the grounds have been drafted in a hurried and casual manner.
4. Finally, we come to ground (j). The duty involved in the present matter will be about Rs. 16 lakhs since the shipments are of the aggregate value of Rs. 64 lakhs. Thus it is very clear that the revenue worth crorcs is not involved in the interim order passed by the single Judge which is the subject matter of the Appeal. However, in view of the gross errors indicated earlier, this is just a mere flourish, a useless one, which the department or the Counsel of the department appears to have indulged into.
4A. We do not think that Court should be constrained to tolerate such shabby work on behalf of the Union of India. We were inclined therefore to compel the Union of India to amend the memo of appeal and move the Court in Appeal after the amendments are carried out.
5. At this stage Shri Madon for the Respondents draws our attention to the fact that if this course of action is adopted, it will permit the Union of India to take advantage of its own wrong by making the Respondents incur further demurrages charges which would be to the extent of Rs. 6,000/- per day.
5A. In this background we direct that the Appeal will go on but irrespective of the orders to be passed in the Appeal or in the motion if the Appeal is admitted, the Appellants will pay to the respondents (Original Petitioners) costs quantified at Rs. 1,000/- (Rupees one thousand) as condition precedent to their proceeding further in the Writ Petition in the lower Court.
6. After having heard Shri Shah on the merits of the Appeal, we find that the subject matter of the Writ Petition is concluded by the decision of the Full Bench of this Court in Apar Pvt. Ltd. v. Union of India reported in : 1985(22)ELT644(Bom) . A few observations may be made.
6A. A view had been taken by this Court almost consistently that in respect of the goods which are imported into India the point of time when they enter the territorial waters of India would be relevant for the purposes of attracting Customs duty. Gujarat and Kerala High Courts in certain decisions had cast some doubt as to the correctness of the above approach. Subsequently, the matter had been referred to a Full Bench of the Bombay High Court of which the learned single Judge, whose decision is appealed against, was a Member. In view of the Full Bench decision which was binding on the single Judge as also on us, the learned single Judge was, in our opinion, in no error in directing the release of the goods on the Petitioners submitting a bond although sum of about Rs. 16 lakhs was involved (and not crores as suggested in the grounds of memo of appeal). We are told that the bond duly executed has been submitted to the Department. Obviously, it must have been submitted prior to the taking out of the contempt Notice of Motion.
7. It is the submission of Shri Shah that an appeal is pending in the Hon'ble Supreme Court from the aforesaid decision in Apar Pvt. Ltd.'s case. That can hardly have any relevance to the question under consideration since there is no stay of the judgment. It has also been submitted and with a little more vehemence, that in excise matters the levy of excise is determined not by the date of manufacture of the goods but by the date on which the said goods are sought to be removed out of the factory. It is accordingly sought to be argued by analogy that the decision of the Supreme Court laying down the aforesaid ratio will be applicable to the levy of customs duty and to that extent the Full Bench decision in Apar Pvt. Ltd.'s case stands overruled. We are unable to agree that a decision based on a totally different Act with a different phraseology would necessarily have that effect. The events attracting duty are totally different. As far as we are concerned, we have no discretion but to act in accordance with the decision in the Apar Pvt. Ltd.'s case.
8. It is the obvious position that this badly drafted memo of appeal about which we have already commented upon in extenso is an afterthought and a counterblast to the contempt motion which the Respondents (Original Petitioners) have taken out. The single Judge gave his decision as far back as 12th April 1990. We find from the record that there was no application made before the single Judge for adjournment for filing a short affidavit opposing admission or for the purposes of interim reliefs. It is also to be found from the record that no application was made to the single Judge for stay of the interim order when pronounced. This would imply that the order had to be complied with forthwith and that this was the understanding of the Dcpt.
9. Indeed, the single Judge could have also disposed of the Rule but presumably refrained from so doing for two reasons, viz.,
(1) that she was aware that an Appeal was pending in the Supreme Court from the decision in Apar Pvt. Ltd.'s case; and
(2) that she thought that the Writ Petition ought to be kept alive so that in case a reversal took place in the Supreme Court and new principles laid down, the Petitioners could be directed by the orders of the Court to make good the benefits, that is, exemption from the Customs duty that they had obtained under the interim orders of the Court.
It may be mentioned in passing that the Motion for contempt was taken out and the Court was moved as far back as 25th April 1990. On that day there was appearance for the Appellants and the matter was then kepi back till 30th April 1990. It is only thereafter that this Appeal has been filed on 3rd May 1990. This may seem to denote total lack of bona fides on the part of the Appellants.
10. However, the Appeal is not required to be dismissed on the ground of a totally unsatisfactory memo of appeal or on the ground of lack of bona fides. In our view the Appeal is required to be dismissed on the simple ground that the decision of the single Judge was correct (as far as the Bombay High Court is concerned) and calls for no interference in Appeal. This is by reason of the Full Bench decision of this Court which was binding on the single Judge as it is on us.
10A. For the aforesaid reasons the Appeal will stand dismissed with costs quantified at Rs. 1,000/- (Rupees one thousand). Payment of costs will be condition precedent to the Respondents appearing further in the Writ Petition.
11. We make it clear that we make no observations as to the question whether the belated filing of the Appeal relieves or protects the Appellants or the concerned officers from the orders sought in the contempt motion taken out by the original Petitioners. The motion will be decided by the single Judge before whom it will come up for hearing in due course. The only observation we can make is that this (the contempt Motion) is indeed a matter which requires to be taken up in vacation. This is because the Respondents (Original Petitioners) had taken out the motion before the vacation but it was postponed at the instance of the Appellants. It is also to be borne in mind that the Petitioners are incurring heavy demurrage every day.
12. The costs awarded have been somewhat heavy but it is not to be forgotten that the Appeal was filed in the vacation and was required to be taken up in the vacation. Judicial notice can be taken of the fact that the legal costs incurred by the Respondents to the Appeal for resisting the Appeal are bound to be more in the vacation than what they would have been during the regular working of the Court. Further, the figure of costs also includes some penal amount for the very badly drafted memo of appeal which aspect has been adverted to earlier. In the circumstances, the figure of costs awarded to the Respondents cannot really be regarded to be on a high or unusual side.
13. We have also directed payment of costs as condition precedent because in our experience unless such directions are given, the Union of India never pays the costs of the other side although ordered by the Court. Accordingly, the further direction of condition precedent is required to be made to ensure compliance with the order for costs.