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Gujarat High Court · body

2010 DIGILAW 96 (GUJ)

ESSAR STEEL LIMITED v. SUPERINTENDENT OF STAMPS

2010-02-24

K.S.JHAVERI

body2010
JUDGMENT 1. As common facts and law are involved in these petitions, they were heard together an being decided by the present common judgement. 2. The challenge in these petitions is to the legality and correctness of (1) the Circular date March 2006 issued by the State Government stating, inter alia, that stamp duty at the rate of per Rs.1000/- or part thereof is payable on goods imported through Ports and (2) the Circuler dated 10th January 2007 issued by the Respondent No.3-Gujarat Maritime Board stating alia, that “No Demand Certificate” (NDC) in respect of the vessel arrived at Magdalla (Surat) Port will be issued after submission clearance from “Registrar of Stamp Duty” regarding payment of stamp duty on the imported cargo and that NDC will not be issued by the said office to the vessels of import without receipt of “Stamp Duty Clearance” (hereinafter collectively referred to as “the imp Circulars”. 2.1 The petitioner companies in the above petitions are manufacturers of various steel pro and are having their plants at Hazira. The petitioners, with the permission of the Government Gujarat and the respondent no.2, constructed a captive jetty for the purpose of landing or shipping of captive industrial raw materials or finished goods from the jetty at a cost of over Rs.115 c After the vessels with imported goods arrive at the Port, goods are discharged and transport custom bounded area through the use of conveyor system and after such goods are cleared customs authorities, the same are transported through conveyor system to the bunker petitioners for use thereof in manufacturing finished goods. 2.2 The captive jetty of the petitioners has been notified as a “landing place” for the purpose loading or unloading of goods under section 8 of the Customs Act, 1962. The petitioner wharfage charges to the respondent no.2 at the prescribed rates for loading and unloading of at the said port. 2.2 The captive jetty of the petitioners has been notified as a “landing place” for the purpose loading or unloading of goods under section 8 of the Customs Act, 1962. The petitioner wharfage charges to the respondent no.2 at the prescribed rates for loading and unloading of at the said port. 2.3 The respondent no.1 issued a Circular dated 29th March 2006 stating, inter alia, that duty at the rate of Re.1/- per Rs.1000/- or part thereof is payable on goods imported through Thereafter the respondent no.3 issued a Circular stating, inter alia, that “No Demand Certificate in respect of the vessel arrived at Magdalla (Surat) Port will be issued after submission clearance from “Registrar of Stamp Duty” regarding payment of stamp duty on the imported cargo and that NDC will not be issued by the said office to the vessels of import without receipt of “Stamp Duty Clearance”. 2.4 Thus, No Due Certificate would be issued to the vessel only upon payment of the stamp There are vehicles of the petitioners unloading cargo, the delivery of which is done on the basis of Bill of Lading. If these vessels are detained for want of “No Due Certificate” as contemplate the Circular dated 10th January 2007, due to non-payment of stamp duty on delivery order petitioners would incur heavy demurrage charges per vessel per day. 2.5 According to the petitioners, amended Article 24 of the Bombay Stamp Act (here in after referred to as Stamp Act or the Act) applies to cases where a delivery order is in fact issue produced before the concerned Port Authorities for obtaining delivery of imported goods received in the port area. The amendment and the impugned Circulars contemplate to deal with cases goods have been sailed and/or entrusted by the carrier to the Port Authorities and the Authorities are requested to deliver them to the ultimate consignee who presents to the Delivery order issued by or on behalf of the Carrier. 2.6 According to the petitioner neither Article 24 in its amended form deals with nor court with a situation where delivery is direct by the consignee without the involvement of the Authorities, against the production of a bill of lading. 2.6 According to the petitioner neither Article 24 in its amended form deals with nor court with a situation where delivery is direct by the consignee without the involvement of the Authorities, against the production of a bill of lading. Neither amended Article 24 deals with could deal with or contemplate a case of direct delivery by the carrier to the consignee at a c jetty against a bill of lading or even otherwise, without the issuance of a Delivery Order. In of these contentions the present petitions have been filed challenging the aforesaid imp circulars. 3. Learned Advocate for the petitioners has raised the following contentions: 3.1 That it is a fundamental principle of law that stamp duty is levied on a docum instrument. No stamp duty is can be levied on a mere right or on a transaction in the abstrac vaccuuo. The incidence of levy of stamp duty is, therefore, required to be related to the exi of such a document/instrument and the existence of such a document/instrument attracting duty is therefore a sine qua non. In absence of a document/instrument no stamp duty is leviab 3.2 That in the present case it is an uncontroverted fact that so far as delivery of cargo petitioners at the captive jetty is concerned, the only document/instrument involved is a b lading/undertaking to produce a Bill of Lading furnished to the charterer. The petitioners r delivery of imported cargo at the captive jetty, from the carrier against a bill of lading and no document or instrument is involved for the delivery of goods. 3.3 That in the case of delivery of cargo to the petitioners at the said captive jetty, no de order is issued. In fact the issuance of a delivery order is completely inconsistent with the m in which delivery is effected at the captive jetty. Delivery is not effected to the Port authoriti directly to the petitioners. There is no bailment or entrustment of goods by the carrier to the Consequently, the question of subsequent delivery of goods by the Port Authorities petitioners does not arise. The carrier is not the Bailor and the Port Authority is not the Baile there is no bailment to the Port. The manner in which the actual delivery is effected is incon with the issuance of the delivery order. The carrier is not the Bailor and the Port Authority is not the Baile there is no bailment to the Port. The manner in which the actual delivery is effected is incon with the issuance of the delivery order. The respondents have not been able to point out a case where a delivery order has in fact been issued. 3.4 That the delivery of cargo against a bill of lading/undertaking to produce a Bill of Ladin universally recognized and accepted practice. 3.5 That since the only document/instrument involved in the process of delivery is a bill of l any levy of stamp duty can only be with reference to this document/instrument. In so far as of lading is concerned, it is clear that the levy of stamp duty on a bill of lading can only be by Parliament and it is not within the legislative competence of a State to prescribe stamp d respect of a bill of lading. Section 2(L) and Section 74 of the Bombay Stamp Act, clearly ex from the purview of the Bombay Stamp Act, a bill of lading. The respondents cannot, ther charge, prescribe, levy or recover any stamp duty on the bill of lading at the rate other than w prescribed in the Indian Stamp Act. 4. In support of the contentions, learned Advocate for the petitioners has relied upo following Judgements: 4.1 In the case of Chowgule & Co. Pvt. Ltd. V. Union of India and others, reported in 198 ELT 39 (SC). Paras 10 and 11 thereof read as under: “10. In regard to the levy of customs duty the scheme of the Act appears to follows: - Goods which are imported into India, that is, goods which are brough India from a place outside India, are on entry into India, broadly classified in goods entered for home consumption under Sec. 46(1)(ii) goods entere warehousing also under Sec.46(1); (iii) goods in transit; and (iv) good transshipment. In the case of goods in transit and goods for transshipment dutyrequired to be paid subject to fulfilling the conditions prescribed by Sections 5 55 and 56. In the case of these goods there is no need to present a Bill of Entr of Entry is necessary and has to be presented in the case of goods for consumption or warehousing: Gods entered for home consumption are required cleared on payment of duty. In the case of these goods there is no need to present a Bill of Entr of Entry is necessary and has to be presented in the case of goods for consumption or warehousing: Gods entered for home consumption are required cleared on payment of duty. Warehoused goods may be cleared either form consumption or exportation on payment of import duty or export duty, as th may be. Goods entered for home consumption are to be subjected to duty atand tariff valuation as on the date of presentation of a Bill of Entry under Sectand goods cleared from a warehouse are to be subjected to duty at a rate and valuation as on the date of actual removal from the warehouse. Other gpresumably goods not disclosed but discovered to be imported or which otherwise escaped duty, are to be subjected to duty at a rate and tariff valuation the date of payment of duty. 11. Section 56(1) which we have extracted earlier requires the importer of any for home consumption or warehousing to present to the proper officer a bill of in the prescribed form. The question, which arises for consideration, therefo whether the vessels in the two cases before us are goods brought into India for consumption? Mixed up with this question is the question whether a transhippe ocean going vessel? We will first consider the question whether a vessel is go as to attract Sec. 46(1) of the Customs Act. By definition a vessel, aircraft or v is included among goods,vide Sec. 2(22). But according to Sri Set notwithstanding the definition, the scheme of Chapters VI and VII of the Cu Act and the context in which the expression “goods” is used in section 46 of th require the expression to be interpreted for the purpose of Section 46(1) as exca vessel, aircraft or vehicle. In answer to a direct question by us, Shri Se canvassed that if a vessel, aircraft and vehicle are required to be excluded fro meaning of the expression ‘goods’ in section 46(1) of the Act, he was una suggest what other purpose was to be served by the inclusive definition expression which expressly brought within its shadow ‘vessel, aircraft and ve He frankly stated that he was unable to point out any provision in the Act into the inclusive definition could be read. We cannot attribute redundance t legislature particularly in the case of a definition in a taxing statute. We proceed on the basis that such a definition is designed to achieve a result. section 12 of the Customs Act what are dutiable are goods imported into or expfrom India and if goods are defined to include vessels, aircrafts and vehicle must take it that the object of the inclusive definition was to bring within the taxation vessels, aircrafts and vehicles which are imported into India. It is undis and indeed it is undisputable that section 46(1) is a prelude to the levy of dut first step in that direction. It must, therefore, follow as a necessary sequitu vessels, aircrafts and vehicles are goods for the purpose of section 46(1). Anyinterpretation may lead to most anomalous results. Under Section 15 of the Cu Act, the rate of duty and tariff valuation in the case of goods entered for consumption under section 46 shall be as on the date when the bill of en presented, in the case of goods cleared from a warehouse under section 68 as date on which the goods are actually removed from the warehouse and in the c any other goods as on the date of payment of duty. Goods which are enter home consumption under Section 46 and goods which are warehoused are nat goods which are openly imported into India without concealment. The expr ‘other goods’ mentioned in Section 15[c] is obviously meant to cover other impgoods such as goods imported clandestinely and goods which have othe escaped duty.” 4.2 In the case of Union of India and others V. Chowgule and Co. Pvt. Ltd., reported in 198 ELT 57(Bom.) it is held that a Bill of Entry is an innocuous matter. It does not creat obligation or liability on the petitioner. It is more so when no civil consequence will follow the mere filing of a Bill of Entry. If such a Bill of Entry is filed the customs authorities proceed to decide the question about the necessity or otherwise of payment of customs du that in this fashion the Bill of Entry would start the ball rolling. Therefore the petitioners been unnecessarily making a grievance when the petitioners were called upon to furnish the B Entry. If such a Bill of Entry is filed the customs authorities proceed to decide the question about the necessity or otherwise of payment of customs du that in this fashion the Bill of Entry would start the ball rolling. Therefore the petitioners been unnecessarily making a grievance when the petitioners were called upon to furnish the B Entry. In this background, petitioners’ grievance about the demand of filing of Bill of Entry a prejudicial act which would require interference by the High Court under Article 226 Constitution. 4.3 In the case of State of Andra Pradesh Vs. K. Shree Ramamurthy, reported in AIR 19 1585 it is held as under: “Where on receiving a part of the purchase price, the Mills issue delivery directing the delivery of goods as per contract and these are handed over to the buyer on his honouring a hundi for the value of the goods, but the buyer, inst himself taking delivery of the goods, kept ready, from the godowns of theendorses the delivery order which passes through several hands before the ul holder of it presents it to the Mills and obtains delivery of the goods from them transaction so entered into by the buyer is not mere sale or transfer of deliverybut is a sale of goods so as to bring them to charge under S.3 of the Madras G Sales Tax Act, 1939. A delivery order is a document of title to goods by virtue 2(4) of the Sale of Goods Act, 1930 and the possessor of such a document has a not only to receive the goods but also to transfer it to another by endorsem delivery. At the moment of delivery by the Mills to the last endorsee, there a effect, two deliveries: one by the Mills to the dealer buyer, represented in so the Mills are concerned by the dealer-buyer’s agent, the endorsee and the oth the dealer-buyer to the endorsee as buyer from the dealer-buyer. These two deli may synchronize in point of time, but are separate in point of fact and in the law.” 4.4 In the case of Hindustan Lever and another V. State of Maharashtra and Another, repor (2004)9 SCC 438 it is held as under: “45. It was contended that since the transaction was not between “living beingsame was not “inter vivos” as the transfer of property had not taken place be living beings. It was contended that since the transaction was not between “living beingsame was not “inter vivos” as the transfer of property had not taken place be living beings. We do not agree. “Transfer of property” has been defined in Sec of the Transfer of Property Act, 1882 to mean an act by which a living pconveys property, in present or in future to one or more other living pe Company or association or body of individuals, whether incorporated or not been included amongst “living person’ in this section. It clearly brings out company can effect transfer of property. The words “inter vivos” in the cont Section 394 of Companies Act would include within their meaning also a tr between two “juristic persons” or a transfer to which a “juristic person” is one parties. The transaction between a minor or a person of unsound mind with the person would not be recognized in law, though the same is between two beings, as they are not juristic persons in the eye of law who can by mutual co enter in a contract or transfer the property. The company would be a juristic pcreated artificially in the eye of the law capable of owning and transferrin property. Method of transfer is provided in law. One of the methods prescri dissolution of the transferor company by merger in the transferee company with all its assets and liabilities. Where any property passes by conveyanc transaction would be said to be inter vivos as distinguished from a case of succ or devise.” 4.5 In the case of State of Rajasthan V. Bhilwara Spinners Ltd., reported in AIR 2001 Raj 184 . Para 23 thereof reads as under: “23. The aforesaid definition makes it clear that a document which either creat right or liability is created, transferred, extended, limited, extinguished or rec can fall within the category of instrument. Even if no such right or liability is cr transfer, limited, extended, extinguished or recorded in fact but purports to transfer or record any right or a liability it may invite attraction of stamp dutyobviously, the right or liability referred to under above definition can only rethe right or liability in respect of which the instrument has been executed. Even if no such right or liability is cr transfer, limited, extended, extinguished or recorded in fact but purports to transfer or record any right or a liability it may invite attraction of stamp dutyobviously, the right or liability referred to under above definition can only rethe right or liability in respect of which the instrument has been executed. transaction has been carried out between two parties without execution instrument, the provisions of the Stamp Act cannot be attracted on the assum that in order to create, transfer, limit, extent, extinguish or record validlyinstrument ought to be executed or purporting to create any right or a liabil purporting to create such right or liability no provision of Stamp Act can be in for the purpose of levying Stamp Duty by assuming existence of any docume the said purpose. Else, it would amount to duty on transaction and not duty instrument. The instrument is chargeable even the transaction which it recod purports to record cannot be effected. For example if a person having no inte any property which he could transfer executes a document purporting to tr such interest in immovable property, the document will attract Stamp Conversely also, as the duty is on the instrument even though where the partie acted in furtherance of the agreement between them by conducting their accordingly but have not executed any instrument to that effect, in the absence instrument to that effect between the parties, no duty under the Act can be chargeable. 5. Mr. M.J. Thakore for the petitioners submitted that in case of Bill of Lading the deliv taken by the petitioners themselves and therefore there is no question of imposing any f duty. According to him Bill of Entry is not a delivery order. He has relied upon sections and 47 of the Customs Act and submitted that in case of Bill of lading it is a matter of clea and there is not a delivery. According to him, only in case the goods are entrusted to a third then the question of bill of entry will come into play and the goods would be leviable as p Circular of the respondent authorities. 6. Mr. S.N. Soparkar, Senior Advocate submitted that though the bill of entry is filed, goods are transferred under Bill of lading, the tax is already paid and only in case of a transaction the duty is leviable. 6. Mr. S.N. Soparkar, Senior Advocate submitted that though the bill of entry is filed, goods are transferred under Bill of lading, the tax is already paid and only in case of a transaction the duty is leviable. He has relied upon a judgement in the case of Bayyana Bhim V. Government of A.P., reported in AIR 1961 SC 1065 (V 48 C 178) wherein it is held tha far as the third parties were concerned, they had purchased the goods by payment of an price, and the transaction must, in law and in fact, be considered a fresh transaction o between the assessees and the third parties. 7. Mr. Kamal Trivedi, learned Advocate General appearing for the respondent State subm that the Bill of Entry is not a procedureal formality, but it creates the following rights in fav the importer of the goods: [i] To have the goods assessed at the value and rate of duty as in force on the date of pres the said Bill of Entry. [ii] To have the goods cleared and delivered in its favour, and [iii] To avail of Cenvat Credit of the import duty paid on the imported goods while paying d the finished goods manufactured therefrom, under Rule 9 of the Cenvat Rules. As against the above, no sooner Bill of Entry is filed under the provisions of the Custom 1962, there arises liability on the part of the importer to pay the required customs duty in r of the imported goods. 7.1 He submitted that the Bill of Entry is very much an “instrument” as per section 2(l) Bombay Stamp Act, 1958 inasmuch as it creates right as well as liability on the part importer, which entitles him to the delivery of the imported goods. In other words, im cannot take delivery of imported goods from the control of the Customs Authorities, unle Bill of Entry is filed and till then, the goods remain within the custody of the Customs Auth and that there would be no question of creation of the aforesaid rights and liability on the p the importer. 7.2 Mr. In other words, im cannot take delivery of imported goods from the control of the Customs Authorities, unle Bill of Entry is filed and till then, the goods remain within the custody of the Customs Auth and that there would be no question of creation of the aforesaid rights and liability on the p the importer. 7.2 Mr. Trivedi submitted that after the amendment in Article 24 with effect from 1.4 concept of transfer of ownership or concept of authorizing third party to make the delivery goods or the concept of tripartite arrangement are all foreign to the provisions contained in A 24 relating to “delivery order” in respect of goods. 7.3 According to him, the language of Article 24 is very clear and that therefore the said pro under the Bombay Stamp Act cannot be interpreted by taking recourse to the provisions of legislations like sections 2(2) and 2(4) of the Sale of Goods Act, dealing with “delivery “document of title to goods”. 8. He has relied upon the following decisions in support of his contentions: 8.1 State of Kerala and others Vs. Mcdowell & Co. Ltd., reported in 1994 Supp (2) SCC 605 21 thereof reads as under: “21. The respondents become liable to pay excise duty on the liquor they make point of time at which it is made. Collection of the amount of excise d ordinarily deferred until the liquor is cleared from the respondent’s distillery. S 7 of the Akbari Act entitles the appellants to clear the liquor for export outsi Sate of Kerala upon their executing an instrument in a form set out in the Rules under the statute. Collection of the amount of excise d ordinarily deferred until the liquor is cleared from the respondent’s distillery. S 7 of the Akbari Act entitles the appellants to clear the liquor for export outsi Sate of Kerala upon their executing an instrument in a form set out in the Rules under the statute. The instrument in question permits the respondents to remo quantity of liquor stated therein from their distillery to a location outside the S Kerala without payment of the excise duty thereon subject to the condition th respondents would deliver the same into the custody of the Excise Officer in c of the importer thereof and the respondents would on demand pay or cause to b to that excise Officer excise duty on all or any portion of such liquor not deli The obligation of the respondents under the instrument in question is that if th a breach of all or any of its provisions or of the Rules they would forthwith pthe State of Kerala the sum of money mentioned in it, representing the amount excise duty payable upon the quantity of liquor to be exported, upon payme obligation would be void and of no effect. By the instrument in question, ther the respondents avail themselves of the advantage of clearing from their distille export outside the State of Kerala, liquor without paying excise duty thereon. do so upon the condition that the liquor shall be delivered into the custody Excise Officer in charge of the importer and excise duty shall be paid to that E Officer on all or any portion of the liquor which is not so delivered. As requir the Abkari Act, the respondents obliged themselves in the event of breach condition, to pay to the State of Kerala the sum of money mentioned instrument in question, being the amount of the excise duty. Under the instrum question the respondents clearly oblige or bind themselves to pay to the St Kerala a specified sum of money and can be sued thereon. The instrum question is, therefore, an instrument whereby a person obliges himself to pay m to another, the obligation to become void if a specified act is performed. Under the instrum question the respondents clearly oblige or bind themselves to pay to the St Kerala a specified sum of money and can be sued thereon. The instrum question is, therefore, an instrument whereby a person obliges himself to pay m to another, the obligation to become void if a specified act is performed. It is a within the meaning of the Kerala Stamp Act.” 8.2 In the case of J.K. Industries Ltd. V. Union of India, reported in 205 (186) ELT 3 (Raj held that the Custom Authorities under whose jurisdiction the bonded warehouse is situate, person before whom application seeking permission to remove goods for home consumptio be made. The bill of entry is also required to be presented to him and liability to pay Cu Duty on such goods be removed for home consumption also arises then. 8.3 In the case of Vijaya Industrial Products (P) Ltd. V. Union of India, reported in 1995 (76 531 (Mad.) it is held that the mere fact that any one information in the prescribed form furnished or any defective or incorrect information is furnished, for any reason whatsoever disentitling or disqualifying factor to outright reject or condemn the Bill of Entry pre otherwise in the prescribed form or to treat the same as one not presented on the actual date presentation as such. 8.4 In the case of Bharat Commerce & Industries Ltd. V. Collector of Customs, Bombay, rep in 1997 (93) ELT 653 (SC), in para 12 it is held as under: “We do not have a case of penalty before us. We are also of the view that filin bill of entry in the prescribed form is not a procedural formality. Otherwis importer may write a letter to the proper officer stating that certain quantit goods have been imported and the goods will have to be cleared on the stren the letter only. If a statutory form is prescribed for presentation of a bill of entr the bill of entry has to be in the prescribed form. Section 46(5) contem substitution of one bill of entry by another. The second bill of entry must a prepared and lodged with the proper officer in the prescribed form. If a statutory form is prescribed for presentation of a bill of entr the bill of entry has to be in the prescribed form. Section 46(5) contem substitution of one bill of entry by another. The second bill of entry must a prepared and lodged with the proper officer in the prescribed form. No order be passed upon it by the proper officer by treating it as a bill of entr warehousing.” 8.5 In the case of Union of India V. Marmagoa Steel Ltd., reported in 2008(229) ELT 481 ( is held as under: “11. Now in the present case, as far as Bills of Entry dated 30th May 1994 and 31s 1994 are concerned, Bills of Entry were produced by the assessee which indicate tha Essar Gujarat Limited had paid duty at the time of import and, therefore, the assesse entitled to take MODVAT Credit for the duty paid on the imported goods. However, we come to the 3rd Bill of Entry dated 6th June 1994, only the above Certificate atNo.42 of the Paper Book was relied upon and the triplicate copy of the Bill of Entr not produced. In the circumstances, in our view, the respondent had wrongly avai MODVAT Credit of Rs.1,78,582/- on the quantity of 212.659 MT scrap referred toabove Chart.” 8.6 In the case of Ashirwad Ispat Udyog V. State Level Committee, reported in AIR 1999 SC in para 8 it is held as under: “8. Decisions construing the meaning of the word “manufacture” as used in statutes do not apply unless the definition of that word in the particular statute consideration is similar to that construed in the decisions. The plain construct the special definition of the word in a particular Act must prevail. In the s definition given in Section 2(j) of the said Act ‘manufacture’ has been defin including a process or manner of producting, collecting, extracting, prepari making any goods. There can be no doubt whatsoever that “collecting” good not result in the production of a new article. There is, therefore, inherent evide the definition itself that the narrow meaning of the word “manufacture” wintended to be applied in the said Act. Again, the definition speaks of “the proc lopping the branches (of trees), cutting the trunks”. There can be no doubt whatsoever that “collecting” good not result in the production of a new article. There is, therefore, inherent evide the definition itself that the narrow meaning of the word “manufacture” wintended to be applied in the said Act. Again, the definition speaks of “the proc lopping the branches (of trees), cutting the trunks”. The lopping of branches a cutting of trunks of trees also, self evidently, does not produce a new article clear words of the definition, therefore, must be given due weight and cann overlooked merely because in other contexts the word “manufacture” has judicially held to refer to the process of manufacture of new articles.” 8.7 In the case of Commissioner of Income Tax, Kerala V. Tara Agencies, reported in 2007 ELT 491 (SC), it is held as under: “59. Undoubtedly, the facts of Nilgiri’s case are identical to the facts of the pcase and the ratio of Nilgiri’s case is fully applicable to this case. But we h bear in mind a significant difference in the language employed in section 8 Bombay Sales Tax Act, 1953 in Nilgiri’s case and the language of section 35 of the Income-tax in the present case. The difference is that the term “proce which has been specifically incorporated in Nilgiri’s case has been speci omitted in the present case. Similarly, in Chowgule’s case the term “processin been incorporated in the statute and the activities of the assesses bo Chaowgule’s and Nilgiri’s cases were held to be processing and these respcases, in these respective cases, the assesses were held to be entitled to the b under respective statutes. In the present case, same benefit cannot be extend respondent-assessee because the word “processing” has been specifically omit the statute. The activities of the assesses both in Nilgiri’s and Chowgule’s amount to processing. The activity of the respondent-assessee in the present cas amounts to ‘processing’. Section 35(1)(b) governing the instant case incorporat terms ‘manufacture’ and ‘production’ and omitted the term ‘processing’. The the respondent-assess cannot be extended the benefit of section 35(1)(B) Income-tax Act. 60. The processing is only an intermediate stage of production and/or manufa The processing of tea of the respondent-assessee falls short of either manufac or production, therefore, because of the language of Section35(l)(B) of the In Tax Act, the respondent-assessee cannot be extended the benefit which has extended to the assesses in Nilgiri’s and Chowgule’s cases. 60. The processing is only an intermediate stage of production and/or manufa The processing of tea of the respondent-assessee falls short of either manufac or production, therefore, because of the language of Section35(l)(B) of the In Tax Act, the respondent-assessee cannot be extended the benefit which has extended to the assesses in Nilgiri’s and Chowgule’s cases. 61. Since the legislature in its wisdom has not used the term ‘processing’ in s 35(l)(B) of the Act, it would be erroneous to incorporate the word in the sectio then interpret the Statue. In this view of the matter Chowgule’s case and Ni case dealt with by this Court in Chwgule’s case are clearly distinguishable be of the language of the statutes. 62. The intention of the legislature has to be gathered from the language used statute which means that attention should be paid to what has been said as a what has not been said. 67. Therefore, the legal position seems to be clear and consistent that it bounden duty and obligation of the court to interpret the statute as it is. It is co to all rules of construction to read words into a statute which the legislature wisdom has deliberately not incorporated. 68. On clear construction and interpretation of section 35B(1A) of the Act w clearly of the opinion that the respondent’s activity amounts to ‘processing’ on the activity does not amount to either ‘production’ or “manufacture’. The “processing” has not been included in section 35B(1A) of the Act, therefo respondent is not entitled for weighted deduction of section 35B (1A) of the Ac 9. The crux of the contention of the petitioners is that since the only document/instr involved in the process of delivery is a bill of lading, any levy of stamp duty can only b reference to this document/instrument. In Mitra’s Legal & Commercial Dictionary (Sixth Ed by Tapash Gan Choudhary, the Bill of Lading is explained as under: Bill of lading: A shipmaster’s detailed list of the ship’s cargo. Bill of lading is a memorandum signed by masters of ships in their capac carriers, acknowledging the receipt of merchant’s goods, of which there are u three parts – one part belongs to the consignor, one sent to the consignee an preserved by the master. Bill of lading is a memorandum signed by masters of ships in their capac carriers, acknowledging the receipt of merchant’s goods, of which there are u three parts – one part belongs to the consignor, one sent to the consignee an preserved by the master. It is the evidence of the title, to the goods shipped; a its endorsement and delivery, the transfer of the property in the goods spe therein is generally effected. A bill of lading is a writing, signed on behalf of the owner of the ship in which are embarked, acknowledging the receipt of the goods, and undertaking to d them at the end of the voyage subject to such condition as may be mentioned bill of lading. It is well settled in commercial world that a bill of lading represen goods and the transfer of it operates as a transfer of goods.” 9.1 The “bill of lading”, typically, is a document, which is issued by or on behalf of a carr relation to the carriage of goods, by sea. A bill of lading, serves three functions. It cons evidence of receipt of the goods by the carrier/ship; it is a document of title to the goods co thereunder; and it is evidence of the terms and conditions of the contract of carriage. A lading is a negotiable document. Title to the consignment covered under the bill of lading a right to receive delivery of the consignment covered by the bill of lading, can, therefo negotiated and/or transferred and/or assigned. A holder of a bill of lading is entitled to de from the carrier, delivery of the goods covered thereunder. The Bills of Lading Act, 1856 go the rights and obligations in relation to a bill of lading in India. 9.2 A “delivery order” is a document which is very different. It does not cover the carria goods by sea. A “delivery order” is a written order or instruction by the bailor of goods, dir a warehouseman, the port authorities or other bailee to deliver the goods to the person nam the delivery order or to the person in lawful possession of the delivery order. A delivery or therefore, different and distinct from a bill of lading. A delivery order is normally issued in where there is bailment of goods and is issued by the bailor and addressed to the bailee. A delivery or therefore, different and distinct from a bill of lading. A delivery order is normally issued in where there is bailment of goods and is issued by the bailor and addressed to the bailee. W goods are loaded onto a ship, and a bill of lading issued, the shipper is the bailor and the car the bailee. I am, therefore, of the view that a bill of lading, which is issued by the carrier (b can, therefore, never treated the description of a delivery order. 10. Now let us examine the case of the petitioners. In the case of the petitioners, the practic is followed at their captive jetty, for discharging of cargo from ships is concerned, is that a when a ship carrying cargo consigned for the petitioners arrives at the jetty, the cargo in the tanks is directly transported via conveyor belt to the custom bonded house/yard for c clearance, where it is directly transported via conveyor belt to the petitioner company’s s facility and from there, it is taken for consumption. All this is done only against prod of/undertaking to produce the Bill(s) of Lading. The respondents are not involved in so entrustment of the cargo by the carrier to the petitioners are concerned. The cargo is d delivered to the petitioners via the jetty utilizing the conveyor belt. The cargo is not delive the Port Authorities, which might be in the case of an individual consignee at a conventiona for further delivery to the ultimate consignee. Thus, I am of the view that since the ca question is directly received, taken delivery of and transported to the petitioners, there entrustment of the cargo to the respondents. Consequently, there is no bailment of the cargo carrier (bailor) to the Port Authorities (Bailee). Instead, there is a direct delivery by the car the consignee and it appears that this is the very purpose for promoting the construction of c jetty. Therefore I am of the view that there is no necessity whatsoever for the carrier issuin instruction, either styled as a delivery order or otherwise, to the Port Authorities to deliv cargo to the consignee. 10.1 It is also required to be noted that a delivery order is a document which contai instruction by the Bailor to the Bailee to deliver the goods bailed to the person named delivery order or the holder thereof. 10.1 It is also required to be noted that a delivery order is a document which contai instruction by the Bailor to the Bailee to deliver the goods bailed to the person named delivery order or the holder thereof. In this case there must be bailment of goods, the doc must be issued by the Bailor and the document must contain instructions to the Bailee. In th of bill of lading, it is not a delivery order. It is issued by the Bailee. It does not contai instruction to the Bailee. A bill of lading does not have any of the incidents, ingredie characteristics of the delivery order. 10.2 Thus, the bill of lading represents the goods and the transfer of it operates as a trans goods. A bill of lading serves three purposes viz. (1) it is a receipt for the goods sh containing the terms on which they have been received; (2) it is evidence of the contract f carriage of goods and (3) it is a document of title for the goods specified therein. In the case of lading the goods are directly transferred to the owner of the goods and no third pa involved. 10.3 In view of the above discussion it is clear that since the cargo in question is directly rec taken delivery of and transported to the petitioners, there is no entrustment of the cargo respondents, there is no necessity for any other instrument. 10.4 Section 2(l) and section 74 of the Bombay Stamp Act clearly exclude the bill of lading the purview of Bombay Stamp Act. In so far as a bill of lading is concerned, it is clear th levy of stamp duty on a bill of lading can only be done by Parliament and it is not with legislative competence of a State to prescribe stamp duty in respect of a bill of lading. In thi since the goods are directly delivered to the owner of goods, no stamp duty is involved. 10.5 The power to levy stamp duty is concurrent under Entry 44 of List III of Schedule 7 Constitution of India. Entry 91 of List 1 of the 7th Schedule prescribes the instruments in re to which the Central Government may enact legislation to prescribe the rate of stamp duty. (1) of Schedule 7 is reproduced below: “91. 10.5 The power to levy stamp duty is concurrent under Entry 44 of List III of Schedule 7 Constitution of India. Entry 91 of List 1 of the 7th Schedule prescribes the instruments in re to which the Central Government may enact legislation to prescribe the rate of stamp duty. (1) of Schedule 7 is reproduced below: “91. Rates of stamp duty in respect of bills of exchange, cheques, promissory bills of lading, letters of credit, policies of insurance, transfer of shares, deben proxies and receipts.” 10.6 Entry 63 of List 2 of Schedule 7, defines documents in respect of which the Government may legislate. Entry 63 of List 2 reads a sunder: 10.7 Thus, a plain reading of Entry 63 of List 2 and Entry 91 of List 1 makes it clear that the Government has no competence to prescribe a rate of stamp duty in respect of docu specified in List 1 Entry 91. Clearly, one of the documents specifically mentioned in Ent List 1 is “Bills of Lading”. Therefore, so far as Bills of Lading are concerned, admittedly only the Central Government which can legislate including prescribing the rate of stamp thereon. 11. It is necessary to refer to the relevant provisions of the Bombay Stamp Act, 1958. Sec (l) of the Stamp Act defines “Instrument” as under: “63. Rates of stamp duty in respect of documents other than those specified provisions of List I with regard to rates of stamp duty.” (l) “instrument” includes every document by which any right or liability purports to be, created, transferred, limited, extended, extinguished or record does not include a bill of exchange, cheque, promissory note, bill of lading, le credit, policy of insurance, transfer of share, debenture, proxy and receipt. Explanation: The term “document” also includes any electronic record as defi clause (t) of sub-section (1) of section 2 of the Information Technology Act, 20 11.1 Thus, a bill of lading is not included in the definition of instrument. Similarly section the Act states that: “74: Act not applicable to rates of stamp duty on bills of exchange, etc.: F avoidance of doubt, it is hereby declared that nothing in this Act shall apply to of stamp duty in respect of bills of exchange, cheques, promissory notes, b lading, letters of credit, policies of insurance, transfer of shares, debentures, p and receipts”. 11.2 It is also required to be noted that in the case of IRC V. G. Angus & Co. reported in (2 SCC 438 the apex court held that the thing which is made liable to stamp duty is the “instrum It is not a transaction of purchase and sale, which is struck at, it is the “instrument” where purchase and sale are effected which is struck at. It is the “instrument” whereby any property the sale thereof is legally or equitably transferred and the taxation is confined only instrument whereby the property is transferred. If a contract of purchase or sale or a conve by way of purchase and sale, can be, or is, carried out without an instrument, the case wou fall within the section and no tax can be imposed. Taxation is confined to the instrument by the property is transferred legally and equitably transferred. In the case on hand the instrument is Bill of Lading on which tax has already been paid and the same is exempted the definition of “instrument”. 11.3 I may also quote section 2(4) of The Sale of Goods Act, 1930 which is as under: “2. Definitions – In this Act, unless there is anything repugnant in the subj context, - Xxx xxx xxx (4) “document of title to goods” includes a bill of lading, dock-warrant, ware keeper’s certificate, wharfingers’ certificate, railway receipt, multimodal tra document, warrant or order for the delivery of goods and any other document u the ordinary course of business as proof of the possession or control of goo authorizing or purporting to authorize, either by endorsement or by deliver possessor of the document to transfer or receive goods thereby represented;” 11.4 The aforesaid definition would show that a bill of lading is a proof of possession or con goods, or authorizing or purporting to authorize, either by endorsement or by deliver possessor of the document to transfer or receive goods. 11.5 Thus, in case of a bill of lading, the Act is not applicable and no stamp duty can be levi short, Section 2(l) and Section 74 of the Bombay Stamp Act clearly exclude a bill of lading the purview of the Bombay Stamp Act. 11.6 As regards filing of bill of entry is concerned, it does not create any obligation or liabil the petitioners. 11.6 As regards filing of bill of entry is concerned, it does not create any obligation or liabil the petitioners. In the case of Union of India and others V Chowgule and Co. Pvt. Ltd. 19 ELT 47 (Bom), the Bombay High Court held that a Bill of Entry is an innocuous matter; i not create any obligation or liability on the petitioner and it is more so when no civil conseq will follow from the mere filing of a Bill of Entry. It is further held that if such a Bill of En filed the customs authorities would proceed to decide the question about the necess otherwise of payment of customs duty and that in this fashion the Bill of Entry would start th rolling. Therefore, the petitioners have been unnecessarily making a grievance whe petitioners were called upon to furnish the Bill of Entry. 11.7 In the case of John F. Fidele & Co. Vs. Collector of Customs, reported in 1992 (58) 498 (Mad) it is held that as a purchaser of the digress vessel, the petitioner has a right to bre same and dispose of the dismantled materials, but when at the same time in order to avoi controversy as to the contents of the distress vessel, there should be an inventory and su inventory is possible only after the petitioner files a Bill of Entry. 11.8 Thus, mere filing of bill of entry would not mean that the petitioner is required to pay duty especially the goods are imported by way of Bill of Lading. As in the present case the t already been paid on bill of lading, there is no question of making any further tax on the sam 12. A contention has been raised stating that filing of bill of entry is not optional. It may But in all cases it is not necessary that tax is required to be imposed, especially when the t already been paid in case of bill of lading. 13. Now, the impugned Circulars were issued on the basis of amended Article 24 of the Bo Stamp Act. While the Indian Stamp Act prescribes the rate of stamp duty on a Bill of Ladin Bombay Stamp Act contains provisions for the rate of stamp duty on “delivery order”. 13. Now, the impugned Circulars were issued on the basis of amended Article 24 of the Bo Stamp Act. While the Indian Stamp Act prescribes the rate of stamp duty on a Bill of Ladin Bombay Stamp Act contains provisions for the rate of stamp duty on “delivery order”. Arti of the Schedule to the Bombay Stamp Act (prior to 1st April 2006) prescribed the rate of duty that would be leviable on “delivery order in respect of goods”. Prior to its amendment April 2006, Article 24 read as under: “24. Delivery order in respect of goods – That is to say, any instrument entitlin person therein named or his assigns or the holder thereof, to the delivery o goods lying in any dock or port, in any warehouse in which goods are stor deposited on rent of hire, or upon any wharf, such instrument being signed by behalf of the owner of such goods upon the sale of transfer of such goods the s transfer of the property therein when such goods exceed in value t rupees.” (emphasis supplied). 13.1 With effect from 1st April 2006, the description of “delivery order in respect of goods however amended. The amended article reads as under: “24. Delivery order in respect of goods, that is to say, any instrument entitlin person therein named or his assigns or the holder thereof, to the delivery o goods lying in any dock or port, in any warehouse in which goods are stor deposited on rent or hire, or upon any wharf, when such goods exceed in valu hundred rupees.” (Emphasis supplied). 13.2 A perusal of the Article, prior to amendment and after amendment, shows that a “De Order” as contemplated by Article 24 shows that the intention of the Legislature was to cov bill of lading which is in the name of a particular person who has transferred by bill of entr subsequently the benefits are taken by the person who has not imported the goods or h contract with the original seller. In such cases the stamp duty is required to be made by way of entry as the goods are transferred to a third party. Bill of Entry is an instrument and prov of Article 24 would apply to it. In such cases the stamp duty is required to be made by way of entry as the goods are transferred to a third party. Bill of Entry is an instrument and prov of Article 24 would apply to it. 13.3 A bare reading of the amended Article 24 further makes it clear that it applies to cases a delivery order is in fact issued and produced before the concerned Port Authorities for obt delivery of imported goods received in the port area. Clearly, the amendment and the imp Circulars contemplates to deal with cases where goods have been bailed and/or entrusted b carrier to the Port Authorities and the Port Authorities are requested to deliver them to the ul consignee who presents to them a Delivery Order issued by or on behalf of the carrier. N Article 24 in its amended form deals with nor could deal with a situation where delivery is by the consignee without the involvement of the Port Authorities, against production of a lading. Neither amended Article 24 deals with nor could deal with nor contemplate a case of delivery by the carrier to the consignee at a captive jetty against a bill of lading or even othe without the issuance of a delivery order. 13.4 In short, if the bill of lading and the bill of entry are in the same name and if the p whose name is in the bill of lading is taking the goods, no separate stamp duty can be levied stamp duty is already paid under the Central Act. Again imposing tax on the very same p would amount to double taxation on the same person. However, if the goods are transferre third person the bill of entry will come into play and the third party is required to mak payment in accordance with Article 24. Therefore, no fault can be found in Article 24 and the Circulars issued on the basis of the said Article. 14. In view of the above discussion it is clear that if the name of the party is the same in th of lading and bill of entry, then no stamp duty can be levied upon them. Therefore, no fault can be found in Article 24 and the Circulars issued on the basis of the said Article. 14. In view of the above discussion it is clear that if the name of the party is the same in th of lading and bill of entry, then no stamp duty can be levied upon them. However, in ca petitioners where the name of in the bill of lading and name in the bill of entry is different, amounts to transfer to third party, then the Circular will come into play and stamp duty w levied. With this clarification these petitions are disposed of. 15.0 In the premises, on the facts of the case, it is declared that since the goods are delivered same name to party in these petitions, it is not necessary to obtain “Stamp Duty Clear Consequently the impugned Circular dated 18-30/12/2007 issued by the Gujarat Maritime is hereby quashed and set aside. Rule is made absolute accordingly in all these petitions w order as to costs.