Per Shri T.P. Nambiar :

This appeal is directed against the orders passed by the Commissioner (Appeals) in Order No. 252/95 ACC dated 8.5.95. The question, which arose for consideration, was whether the date of presentation of the Bill of Entry was 6.2.95 when the same was actually filed by the Appellant to Air Cargo on 28.3.95 when the Bill of Entry was formally noted by the Import Department for the purpose of assessment of the goods to duty.

2. The adjudicating authority held that the date of presentation of the Bill of Entry should be taken as 6.2.95. The case of the appellant is that the date of presentation of the bill of entry should be taken as 28.3.95.

3. The lower appellate authority decided the issue and held that the date of presentation of the bill of entry should be taken as 6.2.95. The learned consultant Shri Kumara Swami appearing for the appellants contended before us that in view of section 46 of the Customs Act, the relevant date could be taken when the same was presented before the proper officer who is designated for this purpose. He pointed out that for the convenience of the department, they have devolved a procedure that it should be submitted first to the appraiser officer in the group for scrutiny and the vigour of section 46 cannot be taken away by this arrangement.

4. He pointed out that it is only when the bill of entry came to the proper officer who is designated for this purpose and only when the proper officer makes an entry in this behalf that alone is to be taken as the relevant date.

5. In this connection, he also produced before PN 161/78 in S.No. 29 of the same, it was mentioned as follows :-

6. The learned SDR Shri Victor Thyagaraj pointed out that for all purposes when the department had developed a procedure and in terms of that procedure when the bill of entry was presented by the appellant that the date of presentation to the concerned clerk should be taken as the date of presentation within meaning of section 46 of the Customs Act.

7. It was pointed out by the SDR that ultimately the same may reach the proper officer on a later date but it was his submission that this will not change the date of presentation as was actually dated on which the appellant presented before the concerned clerk. He also pointed out that in this case, the bill of entry was presented as 6.2.95 and the very same date examination was ordered.

8. The learned consultant Shri Kumara Swami quoted Section 17 of the Customs Act which reads as follows:-

"The relevant of the above such section is stated that the examination of the goods can only be done after entry in this behalf is made under section 46 of the Customs Act."

9. The learned SDR in this connection relied on the decision of the Bombay High Court reported in 38 ELT 401 and stated that the date of presentation is actual date and therefore he states that the appeal is to be dismissed.

10. We have considered submission of the both sides. In order to appreciate the arguments of the both sides, we reproduce section 46 of the Customs Act which reads as follows :-

"46. Entry of goods on importation.- (1) The importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form:

Provided that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof : (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under Section 57 without warehousing the same.

(2) Save as otherwise permitted by the proper officer, a bill of