2003 PLP 1777 (PTD)

(2) The law, however, was changed on 1-1-2000 whereby section 25 of the Customs Act was amended. As a result, the transaction value was made the basis for calculation and levy of customs duty and other taxes. Thereafter on 18-4-2000 the petitioner filed ex-bond Bill of Entry. Since the declared value of US $ 550 per metric ton was the highest available with the Customs House, it was accepted and the imported consignment was released after the petitioner paid customs duty and other taxes in accordance with the declared value, and as per provisions of the amended section 25 of the Customs Act. (3) On 16-4-2001 the Deputy Collector respondent No.4 issued a show-cause notice to the petitioner alleging therein that duty had been short paid on the imported consignment. The basis of this allegation was that the petitioner. was liable to pay duty in accordance with the ITP prevalent at the time of the filing of the in-bond Bill of Entry. The show-cause notice was contested by the petitioner. However, a decision was rendered against the petitioner. An appeal filed by the petition to challenge the order in original, dated 18-8-2001 was dismissed by the learned Appellate Tribunal on the ground that it did not possess jurisdiction in the matter."

2. I have gone through the impugned order with the assistance of both learned counsels. The respondent-Deputy Collector while passing the said order, has proceeded on the premise that under section 30 of the Customs Act, the rate of duty, applicable to the consignment imported by the petitioner, was the rate which was applicable on the date on which the goods were placed in bond. This interpretation placed on section 30 of the Customs Act by the Deputy Collector is erroneous. Section 30(b) of the Customs Act provides as under:-- "

30. Date of determination of rate of import duty.

The rate of duty applicable to any imported goods shall be the rate of duty in force. (a) .................................... (b) In the case of goods cleared from a warehouse under section 104, on the date of which a bill of entry for clearance of such goods is manifested under that section:' Provided that where a bill of entry has been manifested in advance of the arrival of the conveyance by which the goods have been imported, the relevant date for the purposes of this section shall be the date on which the manifest of the conveyance is delivered. Provided further that, in respect of goods for the clearance of which a bill of entry for clearance ha been manifested under section 104, and the duty is not paid within seven days of the bill of entry manifested, the rate of duty applicable shall be the rate of duty on the date of which the duty is actually paid. Provided further that the Federal Government may, by notification in the official Gazette, for any goods or class of goods, specify any other date for the determination of rate of duty. "

3. It is clear from the aforesaid provision that the rate of duty chargeable to the petitioner in respect of the imported consignment was the rate applicable on the date of the consignment was taken out of bond. The said date is 18-4-2000. On 18-4-2000, the provisions of section 25 of the Customs Act were applicable and, as such, the transaction value of the imported consignment was to be the basis for the levy of customs duty.

4. It was contended by learned counsel for the respondent department that the question is not in respect of the rate of duty but of the valuation of the imported consignment. According to him, there is no dispute that the rate of duty to be applied was the rate applicable on 18-4-2000 when an ex-bond Bill of Entry was filed. However, according to him, the valuation of the consignment had to be made in accordance ,with the policy prevalent at the time of the in-bond Bill of Entry i.e. 3-11-1999. As a consequence, according to learned counsel, the rate of duty would be applicable on the ITP value of US dollars 785 per metric ton and not on the declared value of US dollars 550 per metric ton. This argument of learned counsel for the department is misconceived. The assessment was made on the filing of the ex-bond Bill of Entry. The assessment is the product. of the rate of duty and the value. It cannot be reasonably argued that the rate of be applied should be that of the ex-bond Bill of Entry while the valuation should be based on the prevalent policy at the time of the in-bond Bill of Entry.

5. It has been pointed out by learned counsel for the petitioner that the assessment was, in fact, made property on the ex-bond Bill of Entry in accordance with the law and policy applicable on the date the ex-bond Bill of Entry was filed As noted above the goods were also released in accordance with the assessment made at that time and after the assessed duty had been paid by the petitioner.

6. In the present petition, it is the impugned order and the reasoning set out therein, which has to be taken into account. Considering the above circumstances, the said order, being violative of the provisions of section 30 of the Customs Act, is set aside. S.A.K./L-66/L Petition accepted