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1997(5) Supreme 67
SUPREME COURT OF INDIA
(From Customs Excise, Gold (Control) Appellate Tribunal, New Delhi)
Suhas C. Sen, K.T. Thomas, JJ.
Mihir Textiles Ltd. etc. -Appellants
versus
Collector of Customs, Bombay -Respondents
Civil Appeal No. 756 of 1987
With
Civil Appeal No. 1003 of 1988
Decided on 29-4-1997
Counsel for the Parties :
For the Appearing Parties, (Bhaskar Raj Pradhan) Advocate, for Mrs. M. Karanjawala, S. Ganesh, Ms. Amit Bansal, N.K. Bajpai, V.K. Verma, Advocates.
Held : The proviso prescribes, principally, three conditions to be satisfied for entitlement of the concessional rate shown in the aforesaid entry. They are-(1) Goods should have been imported against a specified contract registered with the appropriate Customs House; (2) Such registration should have been made in the manner prescribed by the regulations; (3) Registration of the contract should have been obtained before the order (granting permission for clearance of the goods) was passed. Unless all the three conditions are satisfied, no importer can claim, as a matter of right, the concessional relief provided in the entry. In these cases the contracts were not registered at all before the order of clearance was passed. That fact is not disputed before us and as the appellants were aware of position they chose to pay full customs duty for making the clearance. (Para 7)
Further held that though the appellant got the import licence on 22.10.1980 he did not make any application for registration for almost six months thereafter. Second is that even the letter which he claims to be the prescribed application was sent only a month before clearance of the goods from the port and during the remaining period he could not expect the Central Government to rush through all the formalities necessary for granting registration. If any hasty steps were adopted on the application the resultant order would have been vulnerable to be assailed as an act done with undue haste. (Para 10)
JUDGMENT
Thomas, J.-In both these appeals the question involved is regarding the relief entitlement of the claimants to customs duty payable at the time of clearance of the imported commodities. Under Entry No. 84.66 of the Customs Tariff all items of machinery, including industrial plant, can get clearance on payment of a concessional rate of 40%, if the goods are imported under certain conditions against specific contract registered with the Customs House. The grievance of the appellants herein is that such relief was not granted to them.
2. Appellant in one of these appeals had imported 12 Air Jet Looms along with their accessories and the goods arrived at the Bombay Port on 18.3.1983. Appellant got them cleared from the port on 31.3.1983 on payment of full duty which was a little above 52 lacs of rupees. On 13.4.1983 he applied to the Collector of Customs for granting registration of his contract with the buyer as envisaged in Entry No. 84.66 of the Customs Tariff and he got the registration on 22.4.1983. Then he filed a refund application on the premise that he is liable to pay customs duty only at the concessional rate shown in the aforesaid entry. But the claim for refund was rejected by the Assistant Collector and then he filed an appeal before the Collector of Customs (Appeal) and got the order of the Assistant Collector set aside holding the appellant is entitled to refund. However, the department filed a further appeal before Customs, Excise & Gold (Control) Appellate Tribunal (CEGAT) and as per the order impugned before us CEGAT restored the Assistant Collector s order.
3. The main contention in the aforesaid appeal is that application for registration could not be made to the Collector of Customs before he got clearance of the goods from the port since he could get the recommendation from the Textile Commissioner only by 7.4.1983. Thus, for no fault on his part he could not avail himself of the concessional duty at the time of clearance.
4. The position in the other appeal is slightly different and the facts are, in brief, these: Appellant therein got import licence on 22.10.1980 for importing "Sandzimar Planatory Mill". On the strength of the said import licence he contracted with a foreign seller at Sweeden to despatch the aforesaid Mill. On 20.3.1981 he addressed a letter to the Government requesting that the licence might be endorsed for "Project Import". When the imported goods arrived at Bombay Port in April 1981 be got them cleared by payment of full duty (which is a little less than 20.5 lacs rupees). Appellant got the required endorsement on 14.8.1981 and then he made an application for refind of the duty paid by him. The application was made on the premise that he was liable to pay customs duty only at the concessional rate prescribed under Entry No. 84.66 of the Customs Tariff. Assistant Collector of Customs rejected his refind claim on the main ground that he had not obtained registration of the import contract as "a Project Import". Appellant filed an appeal before Collector of Customs (Appeal) and when that was rejected he went before CEGAT in further appeal and that too was dismissed by the impugned order.
5. The contention adopted by both the appellants is identical, that as they had done their part in obtaining the registration of the import contract as a project import it was quite improper to have denied the benefit of the concessional relief prescribed in Entry No. 84.66 to the importers.
6. For appreciating the said contention it is necessary to extract the aforesaid Entry 84.66 herein (only material portion).
84.66 (I) All items of :
(a) Machinery, including prime movers,
(b) Instruments, apparatus and appliances,
(c) Control gear and transmission equipment.
(d) Auxiliary equipment, as
well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components, required for the initial setting up of a unit, or the sub
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