THE PRINCIPAL APPRAISER (EXPORTS) COLLECTORATE OF CUSTOMS CENTRAL EXCISE AND ORS.versusESAJEE TAYABALLY KAPASI, CALICUT

A   THE PRINCIPAL APPRAISER (EXPORTS) COLLECTORATE OF
             CUSTOMS CENTRAL EXCISE AND ORS.
                                          \'.

                  ESAJEE TAYABALLY KAPASI, CALICUT

                               OCTOBER 11, 1995
B
             !B.P . .JEEVAN REDDY AND S.B. MAJMUDAR, JJ.I

           Customs A ct, 1962-Section 16( I) Proviso r/w-ss 39, 50 and 5 l-Exp01t
    dul_v Rate of-Date of 'enuy oat1varct-Releva11t date with reference to which
C   rate of custo1ns duty 011 o..po11ed goods to be worked out.

          Respondent, carrying on the business of export of coir yarn
    presented before the customs authorities shipping bills for goods booked
    to the shipped on board. TI1e shipping bills were for getting entry outwards
D   for the ship N. The duty payable on the export of the said goods at the
    then prevailing rate was assessed by the customs authorities. The respon-
    dent paid the duty. The 'entry outwards' as envisaged u/s 39 of the
    Customs Act, 1962 was issued and an order permitting the clearance of
    the loading of the goods for export was made. However, for want of space
    in the vessel N the goods were 'shut out'. Respondent submitted fresh
E   shipping bills on 9.8.1966 for 'entry outwards' for ship P. The earlier
    shipping bills were allowed to be amended enabling the respondent to ship
    the goods on board the vessel P. In the meanwhile and before the necessary
    amendment of the shipping bills the export duty payable on coir yarn was
    enhanced from !Oo/c to 25%. The first appellant demanded from the respon-
F   dent an additional anu111nt which the respondent }Jaid under protest.
    Thereafter the respondent applied for refund of the additional amount as
    per Section 27 of' the Act. The Assistant Collector (Customs) rejected the
    application on the ground that the total amount of export duty paid by the
    respondent did not exceed the duty leviable on the goods to be exported at
    the relevant date of issuing the 'e1itry outwards' for the ship P. Appeal tiled
G   before the Appellate Collector of Customs was dismissed. Application filed
    u/s 131 of the Act before the Conunissioner of Revision Applications to the
    Government of India was also rt:iected. The respondent liled writ petition
    before the High Court. The High Court allowed the petition and directed
    the appellant No. 1 to refund the amount to the respondent while holding
H   that once there "'as already an 'entry outwards' granted with reference to
                                         214
               PRINCil'ALAPPRAISER (EXPORTS) v. E.T KAPASI               215

 the vessel N and duty was assessed, in the absence of there being any          A
 provision of reassessn1ent of the duty under the Act the assessed duty
 could not change. Hence this appeal.

       The appellants submitted that the proper export duty chargeable on
. any goods sought to be exported \\ cn1ld be duty payable on the date \Vhen
                                    1




  'entry outwards' for the concerned vessel through \\'hich the goods wt>re
                                                                                B
 exported was issued; that in the present case the goods got exported
 through vessel P and 'entry ~1ul\vards' for the said vessel was issued only
 on 9.8.1966; and that the duty payable on that day was 25% ad valorem
 and consequently the earlier 'entry outward' for the vessel N which never
 resulted in the export of the goods was totally redundant and of no legal      C
 effect and that the High Court had patently erred in holding that once the
 duty was assessed and 'entry outwards' was issued for the vessel N the
 authorities could not demand any further duty on the same goods even
 though they got actually exported by the second vessel P.
                                                                                D
       Allowing the appe~I, this Court

       HELD : On the scheme of the Customs Act the customs duty by way
 of export duty is levied when the goods are exported or taken out of India.
 In the present case the goods never left the territorial limits of India on
 any day prior to 9th August 1966. Earlier was an incomplete or inchoate        E
 attempt on the part of respondent to export these goods through vessel N.
 For that vessel even though 'entry outwards' was obtained it could not
 result into any export as per Section 39 of the Act as that ship had no room
 to carry these goods. Consec1uently the goods remained unexported
 through that vessel. The effective export of these goods took place only by    F
 the next vessel P. For that purpose the shipping bills were duly amended,
 procedure of Section 50 read with Section 51 was, therefore, followed
 afresh by the respondent and when he gnt 'entry outwards' for vessel P
 which permitted him to get these goods loaded in that ship as per Section
 39, the prevalent rate of duty which the respondent had to bear on the G
 exported goods would be the duty at the rate prevalent when 'entry
 outwards' for ship P was obtained by the respondent. That is the clear
 effect of the combined operation of Section 16(1) proviso read with Section
 39, 50 and 51 of the Act. There was no question of any re-assessment of
 the export duty as erroneously assumed by the High Court. The assess·
 ment of effective export duty was only done once the goods got cleared for H
    216                   SUPREME COURT REPORTS (1995] SUPP. 4 S.C.R.

A   effective export via vessel P. The earlier inchoate exercise of an attempt to
    export then1 through vessel N remained an exercise in futility. Consettuent-
    ly the earlier assessrnent of duty being an ineffective exercise created no
    binding obligation either on the part of the assessing authorities or on tlte
    part of the respondent-exporter. Thus the date of 'entry outwards' would
    be the relevant date with reference to which the rate of custom duty on the
B   exported goods is to be worked out. [2211-F-H, 221-A-C]

          Gangadhar Naninghdas Agwwal v. P.S. 171rivikrum & Anr., AIR
    (1973) SC 3511, relied on.


c 1976. CIVIL APPELLATE .JURISDICTION: Civil Appeal No. 1482 of
         From the Judgment and Order dated 30.7.75 of the Kerala High
    Court in O.P. No. 5255 of 1972.

          N.K. Bajpai and C.V. Subba Rao for the Appellants.
D
          The Judgment of the Court was delivered by

          S.B. MAJMUDAR, J. The Principal Appraiser (Exports), Collec-
    torate of Customs & Central Customs House, Cochin-3, the Appellate
    Collector of Customs, Customs & Central Excise House, Madras and the
E
    Union of India represented by the Joint Secretary, Ministry of Finance,
    Department of Revenue and Insurance, New Delhi have pr_eferred this
    appeal by special leave against the judgment and order of a Division Bench
    of the Kerala High Court allowing writ petition of the respondent on 24th
    November 1972. A few relevant facts to highlight the grievance of the
F   appellants an: reqtiired to be n1entioncU at the outset.

          Respondent at the relevant time carried on the business of export of
    coir yarn and ropes at Calicut in the State of Kerala. In July 1966 the
    respondent presented before the customs authorities at the port of Cochin,
    shipping bills for three lots of coir yarn booked to be shipped on board the
G   S.S. Neils Maersk. The said shipping bills were for getting entry outwards
    for the said ship destined for the port of Basrah. The duty payable on the
    export of the said goods at the then prevailing rate was assessed by the
    customs authorities. The same was paid by the respondent. The "entry
    outwards" an envisaged under Section 39 of the Customs Act, 1962
H   (hereinafter referred to as 'the Act') was issued and an order permitting
    PRINC!PALAPPRA!SER(EXPORTS) v. E.T. KAPAS! [S.B. MAJMUDAR J.] 217


the clearance of the loading of the goods for exports as ehvisaged under            A
Section 51 of the Act was made.

      For want of space in the said ves.:-;cl the goods \Vere ;'shut out 11 • The
respondent) however, secured necessary space for eXpnrting these goods
by another vessel named S.S. P'Xilas. Respondent accordingly submitted
fresh shipping bills on 9th August 1966 for 'entry outwards' for S.S. P'Xilas.      B
On the basis of a petition made on behalf of the respondent the earlier
shipping bills were allowed to be amended enabling the respondent to ship
the goods on board the said vessel S.S. P'Xilas.

      In the meanwhile and before the necessary amendment of the ship-
ping bills the export duty payable on coir yarn was enhanced form 10% to
                                                                                    c
25%. The first appellant accordingly demanded from the respondent an
additional amount of Rs. 4,444.96. The respondent paid the same under
protest.

       Thereafter the respondent by his letter dated 21st May 1968/6th July         D
1968 applied for refund of the aforesaid amount as per Section 27 of the
Act. On 13th June 1968 the Assistant Collector (Customs), Cochin rejected
the application of the respondent on the ground that the total amount of
export duty paid by respondent did not exceed the duty leviable on the
goods to be exported at the relevant date of issuing the 'entry outwards'           E
for the ship S,S. P'Xilas. Respondent unsuccessfully carried the matter in
appeal before the Appellate Collector of Customs, Madras who dismissed
the appeal on 16th September 1969. Thereafter the respondent moved the
Commis;ioner of Revision Applications to the Government of India, Min-
istry of Finance, New Delhi under Section 131 of the Act by filing three
applications. The Commissioner re.i ccted all the three applications.               F

      Under these circumstances the respondent moved the High Court of
Kerala at Ernakulum in the aforesaid writ petition. A Division Bench of
the High Court allowed the writ petition by its order dated 30th July 1975
and directed the appellant No.J to refund the amount of Rs. 4, 444.96 to            G
the respondent. It is this order of the High Court which is challenged by
the appellants in this appeal.

      Learned counsel for the appellants vehemently submitted that on a
conjoint reading of Sections 16(1) with the proviso, 17(1) and 50 of the Act
it has to be held that the proper export duty chargeable on any goods H
    218                   SUPREME COURT REPORTS 119951SUPP.4S.C.R.

A   sought to be exported would he duty payable on the date when 'entry
    nut\vards' for the cu1H.:crnc<l vessel through v.,..·hich the goods are exported
    \Vas issued. That in the present ctJsc the goods in question got exported
    through vessel S.S. P'Xilas and 'entry out\vards' for the said vessel \Vas
    i5'ued only on 9th August J966. That the export duly payahle on that day
    \Vas 25'1:) ad valorern and consequently t.hc earlier 'entry outwards' for the
B   vessel the S.S. Neils Macrsk which never resulted in the export of the goods
    was totally redundant and of no legal effect. That the High Court had
     patently erred in taking the view that once the duty was assessed and 'entry
    outwards' was issued for the vessel S.S. Neils Maersk the authorities could
     not demand any further duly on the same goods even though they got
c   actually exported by the second vessel S.S. P'xilas. No one has appeared
    for the respondent to contest these proceedings.

           Having given our anxious consideration tu the contentions canvassed
    by the learned counsel for the appellants we have reached the conclusion
D   that the order under appeal cannot be sustained.

          A few relevant provisions of the Act are required to be noted for
    appreciating the contentions canvassed on behalf of the appellants. Section
    2(18) of the Act defines 'export' to mean, 'taking out of India to a place
    outside India'. Section 2(15) defines 'duty' to mean, 'duty of customs
E   leviablc under this Act'. Section 12 which is the charging Section lays down
    by sub-section (1) thereof that except otherwise provided in this Act, or
    any other law for the time being in force, duties of customs shall be levied
    at such rates as may be specified under the Customs Tariff Act, 1975 (51
    of 1975), or any other law for the time being in force, on goods imported
    inlo, or exported frnn1 India. It !Jt::c.u1nc~, therefnre 1 clear that under the
F
    Act customs duty will have to be paid by way of export duty on goods which
    are exported from Jndia and the taxing event will occur when the goods
    are taken out of India to the destination of a place outside India. Section
    16(J) as applicable al the relevant time read as under:

G            "16(1). The rate of duty and tariff valuation, if any applicable to
             any export goods, shall be the rate and valuation in force,

             (a) in the case of goods entered for export under Section 50, on
             the date on which a shipping bill or a bill or export in respect of
H

                                                                                       -
             such goods is presented under that section;
    PRINCIPAL APPRAISER (EXPORTS) ,., E.T. KAPASI [S.B. MATMUDAR, J.J 219


        (b) in the case of any olhcr goods, on the dale of payment of duly;    A

           Provided lhat if the shipping bill has been presented before lhc
        date of entry outwards of the vessel by which the goods are to he
        exported, the shipping bill shall be deemed lo have been presented
        on the date of such entry outwards".
                                                                               B
Section 50 deals with entry of goods exportation. It reads as under :

        "50. Entry of goods for exportation.-
        (1) The exporter of any goods shall make entry thereof by present-
        ing lo the proper officer in lhe case of goods to be exported in a     C
        vessel or aircraft, a shipping bill, and in the case of_goods to be
        exported by land, a bill of export in lhe prescribed form.

            (2) The exporter of any goods, while presenting a shipping bill
        or bill of export, shall at the foot thereof make and subscribe to a
        declaration to the truth of its contents."                             D

Once the proper officer is satisfied that any goods entred for export are
not prohibited goods and the exporter has paid the duty, if any, assessed
thereon and any charges payable under this Act in respect of the same, the
proper officer may make an order permitting clearance and loading of the E
goods for exportation. Section 39 of the Act provides that the master of
the vessel shall not permit the loading of any export goods, other than
baggage and mail bags, until an order has been given by the proper officer
granting entry-outwards to such vessel. The aforesaid statutory provisions
clearly indicate that varinus steps have lo be taken by an exporter before
his goods actually gets exported meaning thereby they go out of Indian
                                                                               F
territorial waters. In the facts of the present case it is not in dispute that
the respondent had entered his goods for exportation as per Section 50,
assessment was also made by the proper officer under Section 51 and the
officer had permitted clearance and loading of the goods in vessel S.S.
Neils Maersk. But these goods could nol be exported as there was no room G
in the said vessel with the result that they were brought back to the
warehouse and had to await the arrival of the next vessel which could carry
them. That event happened on 9th August 1966 when another vessel S.S.
P'xilas was available and amended shipping bills were again presented by
the respondent under Section 50 read with Section 51 and Section 39 of H
    220                   SUPREME COURT REPORTS l1995j SUPP. 4 S.C.R.

A the Act. The 'entry outwards' for the said vessel S.S. P'Xilas, therefore,
    became effective on and from 9th August 1966. Once that happened
    Section 16 got squarely attracted to the facts of the case. The rate of export
    duty on these goods had to be the rate in force as prevalent on the day on
    which the amended shipping bill or a biil on export in respect of such goods
B   was presented under Section 50. As the earlier shipping bills were rectified
    and amended for permitting the export of the goods in the second ship S.S.
    i''Xilas only on 9th August 1966 the rate of duty would be the one that·
    prevailed on 9th August 1966. The proviso to Section 16(1) makes the
    position ~!ear. It lays down that if the shipping bill has been presented
C   before the date of entry outwards of the vessel by which the goods are to
    be exported, the shipping bill shall be deemed to have been presented on
    the date of such entry outwards. Thus the date of 'entry outwards' would
    be the relevant date with reference to which the rate of customs duty on
    the exported goods is to be worked out. 'Entry outwards' for vessel S.S.
D   P'Xilas was of 9th August 1966. On that day the rate of export duty
    prevalent was 25% ad valorem and not HJ% ad valorem which prevailed
    earlier. It is obvious that 'entry outwards' has to be effected in connection
    with a given vessel and unless that is done the master of the ship would
    not permit loading of such goods for export in his vessel as laid down by
    Section 39. Even the High Court has noted this position but according to
E   the High Court once there was already an 'entry outwards' granted with
    reference to the vessel S.S. Neils Maersk and duty was assessed, in tbe
    absence of there being any provisioh of re-assessment of the duty under
    the Act the assessed duty could not change. The said reasoning is not well
    sustained. On the scheme of the Act the customs duty by way of export
F   duly is levied \Vhen the goods i:lrc exported or taken out of India. Jn the
    present case the goods never left the territorial limits of India on any day
    prior to 9th August 1966. Earlier was an incomplete or inchoate attempt
    on the part of respondent to export these goods through vessel S.S. Neils
    Maersk. For that vessel even though 'entry outwards' was obtained it could
G   not result into any export as per Section 39 of the Act as that ship had no
    room lo carry these goods. Consequently the goods remained unexported
    through that vessel. The effective export of these goods took place only by
    the next vessel S.S. P'Xilas. For that purpose the shipping bills were duly
    amended, procedure of Section 50 read with Section 51 was, therefore,
H   followed afresh by the respondent and when he got 'entry outwards' for
    PRINCIPAL APPRAISER (EXPORTS) ,.. E.T. KAPASI [S.B. MAIMUDAR, J.] 221


vessel S.S. P'Xilas which permitted him lo get these goods loaded in that        A
ship as per Section 39, the prevalent rale of duty which the respondent had
to hear on the exported goods would be the duty al the rate prevalent when
'entry outwards' for ship S.S. P'Xilas was obtained by the respondent. That
is, the clear effect of the combined <iperalion of Section 16(1) proviso read
with Sections 39, 50 and 51 of the Act. There is .no question of any             B
re-assessment of the exp()rt duty as erroneously assumed by the High
Court. The assessment of effective export duty was only done once the
goods got cleared for effective export via vessel S.S. P'Xilas. The earlier
inchoate exercise of an attempt to export them through vessel S.S. Neils
Maersk remained an exercise in futility. Consequently the earlier assess-
ment of duty being an ineffective exercise created no binding obligation
                                                                                 c
either on the part of the assessing authorities or on the part of the
respondent-exporter. Learned counsel for the appellants was, therefore,
right when the contended that the High Court had erred in taking the view
that the export duty payable on the goods in question was as per the rate
that prevailed at the time when first 'entry outwards' was obtained in July      D
1966 for exporting the goods through vessel S.S. Neils Maersk and not the
'entry outwards' as per the amended shipping bills for vessel S.S. P'Xilas
in August 1966. It is not in dispute between the parties that if the effective
rate of export duty was as prevalent on 9th August 1966 the respondent
will not be entitled lo claim any refund of the additional duly of customs       E
paid by him for exporting these goods through the second vessel S.S.
P'Xilas.

      It may also be noticed at this stage that when the Customs Act, 1962
came into force no regulations under I he Act \Vere fran1ed at the relevant      F
time. But these regulations came to .be framed only in 1976 being Shipping
Bill & Bill of Export (Form) Regulations, 1976. However, in the absence
of any such regulations prior lo 1976 it could be presumed that the earlier
for1ns prescribed for exporting goods under the Sea Customs Act, 1878
which came to be repealed and replaced by the Customs Act, 1962 with
effect from 1st February 1963 continued to remain in force. The position         G
of law under the Sea Customs Act, 1878 was that under Section 137 thereof
the Chief Customs Officer was authorised to prescribe the form of the
shipping bill. 1934 edition of the Bombay Supplement to the Indian Sea
Customs Manual compiled by the erstwhile Central Board of Revenue
under Section 204 of the Sea Customs Act contains. the proforma of a             H
    222                   SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A shipping bill. Form No. 34 which prescribes the format of a shipping bill
    clearly indicates that the nmnc of the vessel through which the goods arc
    to be exported is one of the essential requisites of such a shipping bill. IL
    becomes thus clear that the shipping bill as well as the ultimate 'entry
    outwards' for the concerned goods sought to be exported must have
B   reference to the vessel through which such goods are lo be exported.
    Therefore, before any goods are exported out of Indian territorial waters
    which vessel is to be utilised for exporting them, becomes a relevant
    consideration. The concerned shipping bill has to be lodged with reference
    to a given vessel which is to carry these goods out of the Indian territorial
    waters and in connection with such a vessel the 'entry outwards' has lo be
c   obtained and only thereafter the master of the vessel should allow the
    loading of the goods for being exported out of India. The rate of duty
    payable on such exported goods would, therefore, be the rate of duty that
    was prevalent_ at the time when 'entry outwards' through a given vessel is
    obtained. There cannot be an 'entry outwards' in connection with a vessel
D which does not actually carry such goods for the purpose export. In the
    facts of the present case, therefore, conclusion is inevitable that earlier
    'entry outwards' for the vessel S.S. Neils Maersk was an ineffective 'entry
    outwards' for the purpose of computing the rate of customs duty of export
    on the goods in question. Only the subsequent 'entry outwards' for vessel
E   S.S. P'Xilas which actually carried these goods out of Indiun territorial
    waters and effected the export of these goods was the only relevant arid
    operative 'entry outwards' and the rate of duty prevalent on the date of the
    said 'entry outwards' for vessel S.S. P'Xilas was the only effective rate of
    duty payable on the export of these goods. Consequently it must be held
F   that the respondent has made out no case for refund of Rs. 4,444.96 for
    which he lodged the claim.

           Before parting with this discussion we may refer to a decision of a
    Constitution Bench of this Court in Gangadlzar Nars;nghdas Aga1wal v. P.S.
     1711ivikram & Anr., AIR (1973) SC 350 wherein proviso to Section 16 of
G the Act fell for consideration of the Bench. The question before the Bench
     was whether the rate of customs duty prevalent at the date of entry
     outv.rards of the vessel was Lo he operative or whether the change in the
     rate of duty by any notification subsequent to the date of entry outwards
     of the vessel but before the actual arrival of the vessel in the port was to
H    be operative. The Constitution Bench held that the operative rate of duty
   PRINCIPAL APPRAISER(EXl'ORTS) t•. E.T. KAPASI IS.B. MAIM!JDAR l.I     223

would be the duty that was chargeable on the dale of 'entry outwards' of A
the vessel and if there was any change in the duty before the actual arrival
of the vessel such chttnge \vas of no legal cons~qucnce. For arriving at this
conclusion Ray, .J., speaking for the Constitution Bench n1adc the following
pertinent observations in paragraphs 15 to 17 of the Report :

        "15. Entry outwards of a vessel is dealt with in Section 39 of the     B
        Act. Section 39 is as follows :

       '39. The master of a vessel shall not permit the loading of any
       export goods, other than baggage and mail bags, until an order has
       been given by the proper officer granting entry outwards to such C
       vessel, Proper officer mentioned in Section 39 of the Act is defined
       in Section 2(34) of the Act in relation to any functions to be
       performed under this Act to mean the officer of Customs who is
       assigned those functions by the Board or the Collector of Customs.
       Section 39 contemplates an order by the proper officer granting
       entry outwards to such vessel. In the present case, the agents of D
       the ship made an application on 30 July, 1966 for entry outwards
       of the vessel. The Assistant Collector of Customs, Marmagoa
       granted permission on 30 July, 1966 to ship cargo on board the
       vessel. Under Section 39 of the Act loading of goods is not
       permissible until an order is made granting entry outwards to the E
       vessel. In the present case, the Customs Authorities on" 30 July,
       1966 made an order granting entry outwards to the vessel.

       16. Under Section 16 of the Act the date of presentation of a
       shipping bill is the relevant date for dctern1ination of rate of duty
       an<l tariff valua~ion applicable-to export goods. Under the proviso     F
       to Section 16 of t~e Act however there. is a fictiona'I date for
       determination of such duty. The fiction is introduced by providing
       for the date of entry outwards of the vessel to be relevant date in
       case where the shipping bill has been presented before the date
       of entry outwards of the vessel. The <late of entry outwards of the     G
       vessel is the order made under Section 39 of the Act.

       17. Section 38 of the Sea Customs Act 1878 was the counter-part
       of Sec.16 of the Customs Act, 1962. Section 61 of the Sea Customs
       Act, 1878 was the counter-part of Section 39 of the Customs Act,
       1962. Under Section 38 of the 1878 Act the rate of duty was the         H
    224                   SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A            rate in force when the shipping bill was delivered under Section
             137 of the 1878 Act. Section 137 of the 1878 Acl provided for
             clearance of goods for shipment by delivery of shipping hill, pay-
             ment of duties and the passing of the shipping bill hy the Customs
             Authorities. Section 38 of the 1878 Acl had two provisos. Under
             the first proviso lo that old section where the shipment was
B            permitted without a shipping bill, or in anticipation of the delivery
             of a shipping bill, the rate of duty was lo be the rate in force al
             the time when the .shipment of goods commenced. Under the
             second proviso to Section 38 of the 1878 Act where the shipping
             bill was in anticipation of the arrival of any vessel or before an
c            order was given for entry outwards of the vessel the shipping bill
              must be deemed to have been delivered on the date on which that
             vessel arrived or entry outwards was given whichever \Vas Jater.
             Under the provisions of Section 38 of the 1878 Act the Customs
             Authorities had power to apply the rate in force on the date of
             the arrival of the vessel. Under Section 16 of the 1962 Act it is
D
             not permissible to do so. The statute does not contain such a
             provision. Section J6 of the J962 Act speaks of the fictional date
             only in relation lo the order of date of entry outwards of the vessel.
             Tn the present case, the order of entry outwards of the vessel was
             made prior to 2 August, 1966. Therefore, the Customs Authorities
E            in. the impugned order acted without jurisdiction in imposing duty
             on the export by holding that the date of entry outwards of the
             vessel was the date "when the vessel arrived". 11

     It is, therefore, well settled that the relevant rate of customs duly in
F    connection \vith the export of goods \VOtild be the rate \vhicb prevailed
     when the 'entry outwards' for the vessel which ultimately exported the
     goods, was effected and subsequent changes in the rate of duty before the.
     actual arrival of the vessel \Vould be irrelevant. In the present case the
     situation is slightly different. The earlier 'entry outwards' for vessel S.S.
     Neils Maersk remained inoperative and ineffective. For that vessel Section
G 39 of the Act never operated. It is only for the second vessel S..S. P'Xilas
     that an effective 'entry outwards' became operJtive and under Section 39
     of the Act as per the said 'entry outwards' the goods could be loaded on
     the ship and could be exported. It is Ihis 'entry outwards', therefore, which
     would be the relevant entry qua which the rate of customs duty for export
H    had to be worked out.
    PRINCIPALAPPRAISER(EXPORTS) v. E.T. KAPASI [S.B. MAIMUDAR, J.J 225


      Respondent's writ petition was, therefore, liable to be dismissed and    A
was erroneously allowed by the High Court.

      In the result this appeal succeeds and is allowed. The judgment and
order of the High Court arc set aside. The writ petition filed by the
respondent will stand disn1issed. Ho¥icver, in the circumstances of the case
there shall be no order as to costs all throughout.                            B
R.A                                                        Appeal allowed.