JUDGMENT
Suhas Chandra Sen, J.
1. A quantity of 100 M.T. of High Density Polyethylene was imported by the petitioner company by the vessel LHOTSE – V419. for taking clearance of the said goods the petitioner company presented bills of entry before the proper customs officer on March 30, 1992. On the said bills of entry, the agent of the Steamer Company duly made endorsement certifying that the said vessel was expected to arrive at the Port of Calcutta on April 2, 1992. On the said date, the rate of exchange was Rs. 100/- USD 3.4150. The Assistant Collector of Customs, Importing Noting Department passed an order on the forwarding letter on March 30, 1992 to the effect that the said bills of entry may be noted by the Noting Department. Even though the bills of entry had already been presented on 30th March 1992 and even though there was no defect of any nature in the bills of entry, the customs authorities returned the same on 31st March 1992 by making an endorsement that as per the Collector’s order “Nothing” “of the said bills of entry cannot be allowed. On April 1, 1992, the rate of exchange was increased and the new rate was Rs. 100/- = USD 3.1800. The said vessel actually arrived at the Port of Calcutta on 2nd April 1992, that is, well within a period of one week from the date of presentation of the said bills of entry.
2. The respondents case is that since the Collector had not granted “permission” for presenting the said bills of entry on 30th March 1992, the rate of exchange as prevailing on the said date of presentation cannot be applied. It has been contended on behalf of the respondents that even in cases covered by the second proviso to Section 46(3) of the Customs Act, 1962, a bill of entry before delivery of import manifest can be presented not as a matter of right but only if permitted by the Collector.
3. The case of the petitioner is that under the proviso to Section 14(1) of the Customs Act, the price is required to be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under Section 46. In the instant case admittedly, the bills of entry were presented by the petitioner company on 30th March 1992. Accordingly, in view of the proviso to Section 14(i) the price can be calculated only with reference to the rate of exchange as in force on the said date, i.e., on 30th March 1992.
4. Under the second proviso to Section 46(3) of the Customs Act, a bill of entry may be presented even before the delivery of import manifest if the vessel by which the goods have been shipped for importation into India in expected to arrive within a week from the date of such presentation. In the instant case, the said bills of entry were presented by the petitioner company under the said second proviso to Section 46(3). The agent of the shipping company had duly made endorsements on 30th March 1992. On the bills of entry certifying that the vessel was expected to arrive at the Port of Calcutta on 2nd April 1992. The vessel in fact also arrived on 2nd April 1992 i.e., within one week from the date of presentation of the said bills of entry.
5. Mr. Bagaria appearing on behalf of the writ petitioners have invited the attention of this Court to the second proviso to Section 46(3) and has contended that a right has been conferred upon the importer to present bills of entry even before delivery of import manifest, if the vessel is expected to arrive within a week from the date of such presentation. The bill of entry under those circumstances mentioned in the second proviso could be presented as a matter of right. This Proviso should be contrasted with the provisions of the first proviso to Section 46(3) where permission is required for permission of the Collector. This has been expressly provided by the Statute. If the Statute has expressly required permission of the Collector to be taken in some cases and such permission is not required in some other cases, then the intention of the Legislature becomes obvious. The Legislature did not require that permission of the Collector which was necessary for the purpose of presentation of bills of entry in the cases covered by the third proviso to Section 46(3).
6. It has been further contended on behalf of the petitioner that the first proviso and the second proviso to Section 46(3) are two independent exceptions to the provisions contained in the main part of Section 46(3). The first proviso and second proviso deal with different situation and are self contained and independent of each other. The first proviso specifically requires a permission to be taken from the Collector whereas there is no such requirement in the cases covered by the second proviso.
7. Moreover, the first proviso deals with the cases where a bill of entry is to be presented before delivery of import report, that is, when the goods are imported by a vehicle. As per Section 30 import report is required to be filed only if the import is made by a vehicle. The second proviso on the other hand deals with the cases where a bill of entry is to be presented before delivery of import manifest, that is, when the goods are imported by a vessel or aircraft. As per Section 30 import manifest is required to be filed only if the import is made by a vessel or aircraft. Thus the said two provisos deal with two completely different situations.
8. It has further been contended that prior to the amendments made by the Customs, Central Excises & Salt and Central Boards of Revenue (Amendment) Act, 1978 (in short the Amendment Act), there was no existence of the second proviso to Section 46(3). Prior to the said amendments, the first proviso was as under :-
“Provided that the Collector of Customs may in special circumstances permit a bill of entry to be presented before the delivery of such manifest or report.”
Thus, all types of imports were covered by the said first proviso. However, by the said amendments made with effect from 1st July 1978, a distinction has been drawn between goods imported by a vehicle and goods imported by a ship or aircraft. The words “such manifest or report” in the first proviso deleted and were replaced by the words “such reports”. Simultaneously and by the same Amendment Act, the second proviso was added. If the contention of the respondent is accepted then the said amendments made with effect from 1-7-1978 would become meaningless and redundant. There would have been no need to insert the second proviso and to make the said amendments inasmuch as the pre-amendment first proviso itself empowered the importer to present of a bill of entry before delivery of import manifest of import report with the permission of the Collector.
9. Mr. Roy Chowdhury appearing on behalf of the Customs Department has contended that the first proviso and the second proviso to Sub-section (3) of Section 46 have to be read together. The second proviso takes its colour from the wording of the first proviso. The first proviso clearly lays down that prior permission of the Collector would be necessary in cases covered by the first proviso. Thereafter, it has made a further provision. That can only be that certain other cases not covered by the first proviso was brought in the ambit of the provisos. Court emphasised was placed in the phrase “provided further” appearing in the second proviso. It was argued that the word “further” indicate something in addition to what had been provided to the first proviso. So, if any permission was required for the cases covered by the first proviso, then such permission would also be required in the second category of cases.
10. I am unable to uphold this contention of Mr. Roy Chowdhury. The phrase ‘provided further’ is frequently used by the Legislature. Whenever there is more than one proviso, similar clauses are to be found in various other sections of the Customs Act as well as Income-tax Act, Wealth Tax Act and Estate Duty Act. The first proviso to Sub-section (3) of Section 46 makes provisions for certain contingencies for which the prior permission of the Collector is necessary. This has been explicitly stated to be so. The second proviso however, lays down that bill of entry may be presented 7 days before the entry of the vessel in the Port. This is an unequivocal and unconditional right given to the importer. This right cannot be whittled down by torturing the language of the second proviso and giving it an unnatural meaning on the basis of supposed intendment of the Legislature. The phrase ‘provided further’ in the second proviso, only means that another proviso was being added to Sub-section (3) of Section 46. From this, it does not necessarily follow that the second proviso was the continuation of the first proviso.
11. However, on the facts of this case, I need not express any final opinion on the interesting question of law raised on behalf of the petitioner.
12. The petitioner should succeed on one short point in this writ application. It is not only the petitioner but a large number of other importers had imported High Density Polyethylene which arrived at Calcutta Port by the Vessel “Lhotse”. Some of the importers presented their bills of entry even earlier than the petitioner did on 31st March 1992. The bills of entry presented between 20th to 28th March 1992 have been cleared by the customs authority without raising any dispute and valuation was done on the basis of the exchange rate prevalent on the date of presentation of the bills of entry. The goods imported by the petitioner are the same. The goods have arrived by the same boat Lhotse at the Calcutta Port. There is no reason or rational basis for treating bills of entry presented by the petitioner differently from the bills of entry presented by the other importers. Mr. Bagaria produced a list of persons whose goods have been released by customs authority. The goods were of identical nature and had arrived at the Calcutta Port on the same date by the same ship.
13. There is no reason, why there should be any discrimination between the petitioner and the other persons whose goods have been cleared on the basis of calculation made on the basis of the prevalent exchange rate on the date of presentation of the bills of entry. If the contention of the respondent is to be accepted, then the respondents are free to choose the date on which they will charge the duty on the basis of higher exchange rate. In my view, the Customs Department cannot discriminate between the importers who had presented their bills on or before 30th March 1992 and importers who had presented the bills of entry in respect of on or after 30th March, 1992.
14. In my view, on this point, the writ application must succeed. The factual position has not been disputed by the Customs Department. The Customs Department has not denied that the bills of entry have been accepted in respect of the imported goods even before 31st March 1992 and taxes have been levied on those goods on the basis of the prevalent exchange rate on the dates of presentation of the bills of entry. The respondent cannot act arbitrarily and allow some goods to be cleared at the old rate and decide not to allow some other goods not to be cleared until the announcement of the new rates of exchange. Under these circumstances, there will be an order as prayed for in terms of prayer (a), (b) and (c) of the writ petition.
The writ petition is disposed of.
There will be no order as to costs.