G. Sankaran, Vice-President

1. Since these two appeals involve a common issue, they were heard together and are being disposed of by this common order.

2. An exactly similar issue had cropped up in respect of some other consignments of viscose staple fibre imported by the same appellants by the same vessel "BANGLAR PROGOTI" discharged at Calcutta and transshipped to Madras Port by M.V. "KHULNA" (the same vessel as in the previous cases) in identical circumstances. Two such appeals - appeal No. 494/1981 (D) and appeal No. 832/81-(D) - had been disposed of by the Tribunal's orders Nos. 232/83 dated 18.4.83 and 686/84-(D) dt. 15.12.84 confirming the orders of the lower authorities. Quite recently another such appeal No. 966/81-(D) was disposed by a similar order No. 189/86(D) dated 31.3.86 again confirming the orders of the lower authorities. However, when the present two appeals were taken up, Shri Rangaswamy, counsel for the appellants, stated that he would like to submit some further arguments. Since the salient aspects of the dispute have already been discussed at length in the Tribunal's previous orders (referred to above), we propose to confine the discussions in this order to the new points urged or arguments submitted.

3. Sri Rangaswamy submits that looking to the sequence of events, the probability is that the vessel 'Bangla Progati' had come into the territorial waters of India off Madras Port. In support of this contention the following circumstances are cited :

(a) The ship's Agent had filed with the Madras Custom the import manifest of the ship before the arrival of the vessel;

(b) The appellants had filed Bills of entry for assessment of the goods, even prior to the arrival of the goods;

(c) The message from the ship's Master would mean only that the ship had entered the territorial waters of India but without calling at Madras Port (the words under reference are "not calling Madras"); and

(d) The fact of congestion at Madras Port during the period in question was borne out by the position brought out in the Sundaram Textile Mill's case reported in 1983 ELT 909 (Mad).

4. In our considered view, the above circumstances do not necessarily or inevitably add up to the probability that the ship did indeed enter the territorial waters of India off Madras port. This is because the Customs Act does provide the facility of filing import manifests prior to the arrival of vessels (Section 30). It also provides for presentation of bills of entry before the arrival of the vessel by which the goods are imported (Section 46). It is a matter of common knowledge that such facilities are widely availed of by importers in order to complete as much of the Customs formalities as possible before the actual arrival and landing of the goods in order to avoid, or at least minimise, demurrage on the goods. The previous orders of the Tribunal in similar appeals (referred to earlier) have discussed the matter at length with reference to the correspondence and the exchange of messages on record and the Tribunal has come to the conclusion that the reasonable view would be that the ship did not enter the territorial waters of India off Madras port before 1.1.1979. We do not see any justification to depart from this view. The reference to the Madras High Court judgment in Sundasram Textile's case (supra) is of no help to the appellants since it is not the fact of congestion at the Madras port during the material period that is in question, but whether the vessel 'Banglar Progoti' entered the territorial waters of India off Madras port.

5. Next, Shri Rangaswamy submitted that the Madras High Court in M. Jamal Co. v. Union of India and Ors. - (1985) 6 ECC 292 has not taken into account the full Bench judgment of the Bombay High Court in the Apar Private Limited's case - 1985 (6) ECC 241.

It is to be stated in this connection that the latter is the later in point of time. The further submission is that the Madras High Court fell into error in turning to