Judgment

RAY, J. :- This is an appeal by certificate from the judgment dated 5 April, 1968 of the Court of the Judicial Commissioner, Goa, Daman and Diu at Panaji.

2. The appellant challenged the levy of export duty of Rs. 98044 on 980440 metric tonnes of iron ore shipped on S. S. Ardenode on 3 August, 1966 at the rate of Rs. 10 per metric tonne.

3. The appellant on 26 July, 1966 filed shipping bill in triplicate before the Joint Chief Controller of Imports and Exports Panaji, Goa for the purpose of obtaining export licence in respect of 10,160 metric tonnes of iron ore. On 28 July, 1966 export licence was granted to the appellant. On 30 July, 1966 M/s. Hiralal & Co. agents of the vessel S. S. Ardenode made an application to the Assistant Collector of Customs, Marmagoa for the grant of entry outwards to the said vessel to load iron ore. On 30 July, 1966 the Assistant Collector of Customs, Marmagoa made an order granting entry outwards to the said vessel S. S. Ardenode and also gave permission to ship cargo on board the said vessel.

4. On 1 August, 1966 the appellant presented to the Customs Authorities under Section 50 of the Customs Act, 1962 (hereinafter called the Act), shipping bills in triplicate dated 26 July, 1966. The appellant in accordance with the provisions of Section 50 of the Act at the foot of the shipping bill subscribed to a declaration as to the truth of the contents of the shipping bills. On 1 August, 1966 the Customs Authorities made these entries on the shipping bill rotation No. 730 Sd/- 1 August, 1966 Let export after examination if necessary Sd/- 1 August, 1966 and E. F. No. 3/1/8/1966 . The abbreviation E.F means Export Fee (Free?). On 2 August, 1966 the Customs Authorities made further endorsements on the shipping bill. These endorsements were P1 as usual and checked des; Inspected the lot-2-barges-checked des ; and Pd in full .

5. On 2 August, 1966 there was a notification issued by the Ministry of Commerce in exercise of powers conferred by Section 4-A of the Indian Tariff Act, 1934 amending the second schedule to the Tariff Act. The relevant item in the said schedule introduced by way of amendment is 28 and the name of the article is lumpy iron ore and the rate of duty is Rs. 10 per tonne.

6. The S. S. Ardenode arrived at Marmagoa at 23.20 hours on 2 August, 1966. The vessel arrived at Marmagoa Inner Harbour on 3 August, 1966 at 07.50 hours. The vessel commenced loading the cargo on 3 August, 1966.

7. The Customs Authorities on 28 January, 1967 issued a notice to the appellant notifying that the goods actually shipped by the appellant were subject to export duty at the rate of Rs. 10 per metric tonne and the custom duty amounting to Rs. 98044 which not levied in respect of the consignment was due from the appellant and the appellant was called upon in accordance with Section 28 of the Act as to why the amount should not be recovered from the appellant.

8. The appellant contended before the Customs Authorities that the shipping bill was presented to the Customs Authorities and the entry outwards to the ship S. S. Ardenode was given prior to 2 August, 1966 when no duty was payable in respect of the export of the goods in question. The appellant, therefore, contended that the notification under S. 4-A of the Tariff Act 1934 was not applicable to the consignment and no duty was payable in respect of the export of the goods having regard to the provisions of Sec. 16 of the Customs Act. It may also be stated that the appellant impeached the vires of the notification.

9. The Customs Authorities on 19 April, 1967 held that by virtue of the provisions of Section 16 (1) of the Act the shipping bill shall be deemed to have been presented at the earliest on 3 August, 1966 when the vessel in question arrived. The export duty was levied with effect from 2 August, 1966. The Customs Authorities therefore held that the appellant was liable to pay the export duty.

10. The appellant impeached the order of the