The chargeability for import duty takes place at the time of unloading of the goods and not when the goods enter territorial waters.

PADMINI JESUDURAI, J.

Since a common question, as to when customs duty became leviable for the two consignments of goods imported into India, arises in these writ appeals, they are disposed of together under a common judgment.

2.Appellants in these writ appeals are the respondents in W.P. 298 of 1979 and W.P. 459 of 1979 (and will hereinafter be referred to as the respondents). The respondent in W.A. 538 of 1982 (who will hereinafter be referred to as the first petitioner) is the petitioner in W.P. 298 of 1979, and the respondent in WA. 539 of 1982 is the petitioner in W.P. 459 of 1979 (and will hereinafter be referred to as the second petitioner).

3.Each of the petitioners filed a writ petition, more or less on similar averments, each seeking a writ of certiorarified mandamus for quashing the order of the first respondent assessing their goods for customs duty to a particular sum. Both the petitioners had imported viscose staple fibre blended yarn, the first petitioner, 142 bales and second petitioner 48 bales from the United Kingdom. The goods came by steamer 'Clan Magnair' from Middleborough Port (U.K.) to Madras. The ship entered the territorial waters of India on 7-12-1978, and berthed at North Quay on 4-1-1979. The bill of entry had already been prepared on 8-12-1979, and had been received by the office of the first respondent on 13-12-1978. Though the ship entered into the territorial waters on 7-12-1978, the unloading of the goods could not be done due to berthing difficulties and the vessel was actually berthed only on 4-1-1979. Under the Customs Tariff Act, the goods were subjected to a levy of 100 per cent basic import duty under Chapter 56 of the First Schedule of Customs Tariff Act, 1975, and an auxiliary duty of 20 per cent leviable under Section 32(1) of the Finance Act, 1976, together with an additional duty leviable under Section 3 of the Customs Tariff Act, 1976. However, by Notification No. 388 dated 2-8-1976, issued by the Government of India (Ministry of Finance Department), Department of Revenue and Banking, there was a total exemption of the duty leviable under Chapter 56 of the First Schedule of the Customs Tariff Act and the whole of the additional duty leviable thereon under Section 3 of the Act. By an earlier Notification No. 385 dated 23-7-1976, the Central Government had exempted viscose staple fibre from the auxiliary duty of customs leviable under Section 32(c) of the Finance Act. These notifications granting exemptions were periodically extended and were in force upto and inclusive of 31-12-1978. The Government of India by two fresh Notifications Nos. 6 and 7 dated 5-1-1979, exempted viscose staple fibres when imported into India, from the whole of the duty of customs as well as the auxiliary duty of 20 per cent. By Notification No. 8 also dated 5-1-1979, an additional duty of not exceeding Rs. 1.32 per kilogram was levied under Section 3 of the Customs Tariff Act. Reckoning 4-1-1979 viz., the date of berthing of the ship, as the relevant date for determining the point of time when the goods could be treated as chargeable, the first respondent assessed the goods on the basis of the rates prevailing as on 4-1-1979, when none of the exemption notifications was in force and assessed the tax on the basis of the Customs Tariff Act. Contending that the relevant date for chargeability was not the date of berthing of the ship, but the date of its entry into territorial waters viz., 7-12-1978, on which date the two notifications granting exemptions were in force, the petitioners filed writ petitions, seeking quashing of the assessment orders and release of the goods free of tax.

4.The respondents contended that the chargeability for duty was only on the date of the berthing of the ship and not the date of the entry of the ship into territorial waters and that the petitioners have been rightly assessed to duty that was leviable on 4-1-1979, when none of the exemption notifications were in force an