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1993 DIGILAW 195 (CAL)

PRAVEEN (INDIA) LTD. v. COLLECTOR OF CUSTOMS

1993-04-21

RUMA PAL

body1993
RUMA PAL, J. ( 1 ) THE petitioner No. 1 Company is an importer of goods. The goods of the petitioner No. 1 were shipped from the foreign country aboard the S. S. Tiger River V-147. The petitioner-Company presented the Bills of Entry before the Customs Authorities in respect of the goods aboard the S. S. Tiger River V-147 on 31st March, 1992. This was done under the second proviso to Section 46 (3) of the Customs Act. ( 2 ) THE above facts are not in dispute. What is in dispute is the rate of exchange applicable for the purpose of determining the value of the goods imported. According to the proviso to Section 14 (1) of the Customs Act, 1962, the price is to be calculated with reference to the rate of exchange as in force on the date on which the Bill of Entry is presented under Section 46 of the said Act. ( 3 ) ACCORDING to the petitioners, the rate of exchange would be that which was applicable when the petitioner-Company presented the Bills of Entry, namely, 31st March, 1992. ( 4 ) ACCORDING to the respondents, the proviso to Section 46 was not applicable in this case as the S. S. Tiger River V-147, in fact, arrived more than 7 days after the presentation of the Bills of Entry. ( 5 ) THE second proviso to Section 46 (3) of the Customs Act, 1962 reads as follows :-"provided further that the Bill of Entry may be presented even before the delivery of such manifest if the vessel by which the goods have been shipped for importation into India is expected to arrive within a week from the date of such presentation. "therefore, the relevant consideration is whether when the Bills of Entry were presented, the S. S. Tiger River V-147 was expected to arrive within a week or not. The word, "expected to arrive" cannot be considered to mean actual arrival. The expectation will have to be determined on the basis of the objective criteria. ( 6 ) THIS position is not seriously disputed by the respondent authorities. The petitioners have filed supplementary affidavit in this proceeding which includes a copy of the Shipping Times. The Shipping Times gives particulars of, inter alia, vessels due in Calcutta for import discharge, vessels due in Calcutta for export loading, the export schedules etc. ( 6 ) THIS position is not seriously disputed by the respondent authorities. The petitioners have filed supplementary affidavit in this proceeding which includes a copy of the Shipping Times. The Shipping Times gives particulars of, inter alia, vessels due in Calcutta for import discharge, vessels due in Calcutta for export loading, the export schedules etc. and in the each of these headings, expected time for arrival or due date of the Tiger River has been stated to be 6th April, 1992, in other words, within the period of 7 days from the date of presentation of bill of entry by the petitioners. Additionally the petitioners have relied upon shipping notices published in Statesman on 30th March, 1992 and 4th April, 1992 each of which show that the Tiger Vessel was due to arrive on 6th April, 1992. There is, therefore, conclusive evidence to show that the expectation of the date of arrival of the Tiger River was reasonable. In fact, there is no evidence to the contrary namely that the Tiger River was due on any other date. The rationality of the expectation will have to be determined as on the date of presentation of the Bills of Entry. The tests for determining whether the petitioners' case fell within the second proviso to Section 46 (3) of the Customs Act, 1962 have been fulfilled in this case. ( 7 ) IN that view of the matter, the writ application must be allowed. It appears that by an interim order the respondents were directed to assess the petitioner on the basis of the rate applicable as on the date of presentation of the Bills of Entry. The goods were directed to be released to the petitioner subject to payment of the dues as assessed and subject to the petitioner securing the difference between the assessed dues and the dues as would have been applicable at the rate of exchange applicable on a subsequent date. The petitioner has paid the assessed dues and has also furnished a bank guarantee for the difference. The goods have been released to the petitioner by the respondent authorities. The petitioner has paid the assessed dues and has also furnished a bank guarantee for the difference. The goods have been released to the petitioner by the respondent authorities. In view of the finding of this Court that the rate applicable is the rate prevalent on the date of the presentation of the Bills of Entry namely 31st March, 1992, the only consequential order that is necessary to be passed is that the bank guarantee furnished by the petitioner will stand discharged and will be returned by the respondent authorities to the petitioners.