JUDGMENT

PATHAK, C.JI. :— By this writ petition under Art. 32 of the Constitution the petitioners seek relief against the imposition of customs duty at 150 per cent on their import of edible oils into India.

2. The petitioners entered into a contract with foreign sellers for the supply of edible oils. The consignment of edible oils was Sent by the ocean going vessel M. V. Kotta Ratu. The vessel approached Bombay and made its " prior entry" on 4 July, 1981. It actually arrived and registered in the Port of Bombay on 11 July, 1981. The petitioners say that the Port Authorities at Bombay were unable to allot a berth to the vessel, and as she was under heavy pressure from the parties whose goods she was carrying she left Bombay for Karachi for unloading other cargo intended for that port. It is alleged that the vessel set out on its return journey from Karachi and arrived in the Port of Bombay on 23 July 1981 and waited for a berth. On 4 August, 1981 she was allowed to berth in Princess Docks C Shed and the Customs Authorities made the" final entry" on that date. The petitioners point out that when the vessel made its original journey to Bombay and was waiting in the waters of the Port the petitioners presented the Bill of Entry to the Customs Authorities on 9 July 1981, that the Bill of Entry was accepted by the Import Department and an order was passed by the Customs Officer on the Bill of Entry on 18 July 1981 directing the examination of the consignment.

3. It is stated that the Customs Authorities have imposed customs duty on the import of the edible oils effected by the petitioners at the he rate of 150 per cent on the footing that the import was made on 31 July 1981, the date of "Inward Entry". The case of the petitioners is that the rate of duty leviable on the import should be that ruling on 11 July 1981, when the vessel actually arrived and registered in the Port of Bombay, and that but for the fact that a berth was not available the vessel would have discharged its cargo at Bombay. and would not have left that Port and proceeded to Karachi to return to Bombay towards the end of July 1981. Alternatively, the case of the petitioners is that if it be found that the rate of customs duty attracted by the import effected by the petitioners is 150 per cent the levy is unconstitutional and void as a violation of Art. 14 of the Constitution inasmuch as customs duty at 5 per cent only was levied on the State Trading Corporation on similar imports of edible oils, made by it as an importer. The petitioners have also challenged the validity of S. 15 of the Customs Act, 1962 under which the rate of duty and tariff valuation is determined.

4. To resolve the issue between the parties it is necessary to ascertain the effective date with reference to which customs duty becomes payable on imports into India. S. 15(l) of the Customs Act, 1962 provides :

"(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,-

(a) in the case of goods entered for home consumption under S. 46, on the date on which a bill of entry in respect of such goods is presented under that section;

(b) in the case of goods cleared from a warehouse under S. 68, on the date on which the goods are actually removed from the warehouse:

(c) in the case of any other goods, on the date of payment of duty;

Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards."

5. The rate of duty and tariff valuation applicable to the imported goods is governed by Cl. (a) of S. 15(l). In the case of good,, entered for home consumption under S. 46. it is the date on which the Bill of Entry in respect of such goods is presented under that section. S. 46 provides that the importer of any goods shall make entry thereof by presenting to the proper officer a Bill of Entry