K.S. Venkataramani, Member (T)

1. This appeal is against the order dated 10.3.1987 passed by the Collector of Customs (Appeals), Bombay by which he had upheld the order of the Assistant Collector of Customs, Bombay relating to the assessment of a car imported by the appellant herein Maj. K.C. Kapur,

2. Maj. Kapur imported a Toyota Corona Car when he returned to India after residing abroad for five years. The Ship, State of Tripura by which the car was shipped arrived at Bombay Port on 22nd February, 1986. It was also berthed at the Port on 25/26 Feb., 1986 with IGM No. 388/26. Some cargo was unloaded and the ship was thereafter taken off berth, with the result that on 26.2.1986 the appellant's car was not actually unloaded from the ship. The ship was again brought back to berth on 5.3.1986. In the Bill of Entry IGM number was amended to 424/26 when the car was unloaded. On 1.3.1986 there was an increase in the duty applicable and as a result this increased rate of duty was applied considering the import as having been effected on 5.3.1986. The appellant states that during the period the ship had not gone to any other Port but was in Bombay Harbour. The appellant's grievance is that the ship had arrived at the Port and had even berthed there and started unloading cargo, vet due to some reason, after partial unloading, the ship had to change the berth. By the time she berthed again there has been an increase in the rate of duty. The appellant claims that this increase in the rate of duty cannot be applied to the car imported by him because the ship had earlier arrived at the Port at a time when the earlier lower duty was applicable. The re-berthing of the ship was a circumstance beyond his control and due to no fault of his. During the hearing before us Maj Kapur reiterated his stand stating that since the Bill of Entry had been filed and roods carried by the vessel had also been unloaded in the Port on 25/26 February, 1986 the subsequent higher rate of duty was not applicable. He also submitted tint the rate of" exchange adopted should be the one prevailing on the date of purchase of the car by him.

3. Shri S. Krishnamurthy, the learned S.D.R. submitted that the Custom House had gone by the amended Bill of Entry according to which the entry inwards of the vessel was subsequent to 1.3.1986 when the higher rates were applicable and hence the duty had been charged accordingly.

4. We have carefully considered the submissions made by Maj. Kapur the learned SDR. The question here is about the rate of duty applicable to the car imported by the appellant. It is seen from the records that the ship had already been granted entry inwards in terms of Section 31 of the Customs Act, 1962 and the cargo had also been unloaded though partially on such grant of entry inwards. Under Section 31 of the Customs Act 1962 shows that the person incharge of the ship, namely, the master of the vessel has to deliver to the proper officer the Import manifest and the master of the vessel according to the Section 31, shall not permit the unloading of any imported goods until the order has been given by the proper officer granting entry inwards to the vessel. As regards the rate of duty to be applied Section 15(1)(a) of the Customs Act, 1962 lays down that the rate of duty applicable to any imported goods shall be the rate in force on the date on which the Bill of Entry in respect of such goods is presented. From the above provisions we see that in the case of appellant's car which arrived by the vessel State of Tripura, entry inwards had been granted on delivery of the Import Manifest and the unloading of Cargo had also started in pursuance of the order granting entry inwards and a Bill of Entry had also been presented on 25.2.1986 It would appear from the records that meanwhile the ship was taken away from one berth in the Port and later brought into another berth It is not the case of the department that the ship left the Port on another voyage Therefore,