Collector of Customs Vs. M.S.P. Exports - Court Judgment

Excerpt:
1. m/s m.s.p. exports presented a shipping bill on 25-8-1981 for export of 55 packages of coffee to usa by s.s. state of meghalaya. on 9-9-1981 the name of the ship in the shipping bill was amended to s.s. jala mohan at the request of the company. duty was paid on 28-8-1981 and the goods were shipped by s.s. jala mohan for which entry outwards was granted on 12-9-1981. the exporters then preferred a refund claim on the ground that export duty on the coffee exported stood abolished with effect from 10-9-1981. the assistant collector rejected the refund claim on the ground that the shipping bill having been presented on 25-8-1981 that was the relevant date and not the date of amendment of the name of the vessel and, therefore, no refund was due. this order was set aside by the appellate collector under order dated 18-6-1982.the collector of customs, madras has preferred the present appeal against the said order.2. we have heard shri g.v. naik, jt. cdr for the appellant collector, none appearing for the respondents.3. in the grounds of appeal it is mentioned that the provisions of section 16(1) of the customs act would apply only in cases of the shipping bills as presented originally and that the said provisions do not cover cases where the name of the vessel is amended subsequently.we are unable to appreciate this contention. when an amendment is applied for with reference to a shipping bill already presented, it would be open to the authorities to either grant the amendment or decline to grant the same. if the authorities decline to grant the amendment (of the name of the ship in the shipping bill) it will be open to the exporter to withdraw the shipping bill already filed and file a fresh shipping bill containing the name of the ship through which the export was to be actually affected. in such a situation the provisions of section 16 would apply to the bill so presented. we see no reason why the same result would not follow, if instead of filing a fresh shipping bill the exporter is allowed to amend the name of the ship in the bill already filed.4. in this case the export was effected by s.s. jala mohan. entry outwards for the ship was granted on 12-9-1981. the shipping bill had been presented on 25-8-1981 itself. therefore, under the deeming provisions of section 16 of the customs act the date of presentation of the shipping bill should be held to be 12-9-1981 only. the decision of the supreme court in gangadhar narsinghdas agarwal v. p.s. trivikraman and anr. (1983 elt 1491 (sc) is authority for this proposition. it laid down that section 16 provided for one fictional date only, that being the date of grant of entry outwards if the shipping bill had been presented before that date.5. therefore, in the present instance, the rate of duty would be the rate prevalent on 12-9-1981. since by 10-9-1981 duty on export of coffee stood abolished it follows that no duty was payable by the respondents on their export. accordingly, we hold that the appellate collector was correct in directing the refund applied for. this appeal is, therefore, dismissed.

Judgment:
1. M/s M.S.P. Exports presented a shipping bill on 25-8-1981 for export of 55 packages of coffee to USA by S.S. State of Meghalaya. On 9-9-1981 the name of the ship in the shipping bill was amended to S.S. Jala Mohan at the request of the Company. Duty was paid on 28-8-1981 and the goods were shipped by S.S. Jala Mohan for which entry outwards was granted on 12-9-1981. The exporters then preferred a refund claim on the ground that export duty on the coffee exported stood abolished with effect from 10-9-1981. The Assistant Collector rejected the refund claim on the ground that the shipping bill having been presented on 25-8-1981 that was the relevant date and not the date of amendment of the name of the vessel and, therefore, no refund was due. This order was set aside by the Appellate Collector under order dated 18-6-1982.

The Collector of Customs, Madras has preferred the present appeal against the said order.

2. We have heard Shri G.V. Naik, Jt. CDR for the appellant Collector, none appearing for the respondents.

3. In the grounds of appeal it is mentioned that the provisions of Section 16(1) of the Customs Act would apply only in cases of the shipping bills as presented originally and that the said provisions do not cover cases where the name of the vessel is amended subsequently.

We are unable to appreciate this contention. When an amendment is applied for with reference to a shipping bill already presented, it would be open to the authorities to either grant the amendment or decline to grant the same. If the authorities decline to grant the amendment (of the name of the ship in the shipping bill) it will be open to the exporter to withdraw the shipping bill already filed and file a fresh shipping bill containing the name of the ship through which the export was to be actually affected. In such a situation the provisions of Section 16 would apply to the bill so presented. We see no reason why the same result would not follow, if instead of filing a fresh shipping bill the exporter is allowed to amend the name of the ship in the bill already filed.

4. In this case the export was effected by S.S. Jala Mohan. Entry outwards for the ship was granted on 12-9-1981. The shipping bill had been presented on 25-8-1981 itself. Therefore, under the deeming provisions of Section 16 of the Customs Act the date of presentation of the shipping bill should be held to be 12-9-1981 only. The decision of the Supreme Court in Gangadhar Narsinghdas Agarwal v. P.S. Trivikraman and Anr. (1983 ELT 1491 (SC) is authority for this proposition. It laid down that Section 16 provided for one fictional date only, that being the date of grant of entry outwards if the shipping bill had been presented before that date.

5. Therefore, in the present instance, the rate of duty would be the rate prevalent on 12-9-1981. Since by 10-9-1981 duty on export of coffee stood abolished it follows that no duty was payable by the respondents on their export. Accordingly, we hold that the Appellate Collector was correct in directing the refund applied for. This appeal is, therefore, dismissed.