Gujarat High Court
M/S. Vedanta Ltd vs State Of Gujarat on 12 January, 2022
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/19862/2021 JUDGMENT DATED: 12/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19862 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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M/S. VEDANTA LTD.
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR PARESH M DAVE, SR.ADVOCATE with MR. AMAL PARESH DAVE,
ADVOCATE for the Petitioner(s) No. 1,2
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 12/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs :
Page 1 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022C/SCA/19862/2021 JUDGMENT DATED: 12/01/2022 "(A) That Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to refund and restitute Rs.2,48,45,110/- to the petitioner company, which are the amounts collected from the petitioners as stamp duty on Bills of Entry filed for the goods imported by them;
(B) That Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction thereby directing the Respondents Nos.1, 2 and 3 herein to pay to the petitioners interest @ 9% per annum (or at the rate that may be deemed fit by this Hon'ble Court) on the amounts of Rs.2,48,45,110/- collected as stamp duty from the petitioners, for the period when the amounts were collected from the petitioners till actual refund/restitution thereof;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the 1 st, 2nd and 3rd respondents herein to forthwith return to the petitioners Rs.2,48,45,110/- on the terms and conditions that may be deemed fit by this Hon'ble Court;
(D) An ex-parte ad-interim relief in terms of Para 19(C) above may kindly be granted;
(E) Any other further relief that may be deemed fit in the facts and circumstances of the case may also please be granted."Page 2 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022
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2. We need not delve much into the facts of this litigation as our order dated 5th January 2022 would make the picture clear. The order passed by this Court dated 5 th January 2022 reads thus :
"1. We have heard Mr.Amal Dave, the learned counsel appearing for the writ applicants and Mr.Utkarsh Sharma, the learned AGP appearing for the State.
2. The short point involved in the present litigation is whether stamp duty on the bills of entry filed for the goods imported can be levied or not. This issue as such is no longer res integra in view of the judgment of this High Court to which one of us (J.B.Pardiwala J) was a party, rendered in the case of State of Gujarat vs. Reliance Industries Ltd. & Ors., Letters Patent Appeal No.6 of 2011 and allied appeals decided on 08.09.2011.
3. This Court in the aforesaid judgment has taken the view that on "bill of entry" the authorities cannot charge stamp duty under Article 24 of the Bombay Stamp Act. The aforesaid judgment came to be followed by this Court later in the case of M/s.Ramratna Wires Ltd. vs. State of Gujarat, Special Civil Application No.14819 of 2020, decided on 23.12.2020.
4. It appears that despite the aforesaid position of law, the writ applicants were compelled to deposit an amount of Rs.2,48,45,110/- towards stamp duty on the bills of entry. The respondent No.1 herein, the Superintendent of Stamps, Gandhinagar, owes an explanation in what circumstances, Page 3 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022 C/SCA/19862/2021 JUDGMENT DATED: 12/01/2022 despite the settled position of law, the writ applicants were asked to pay the stamp duty on the bills of entry.
5. Let Notice be issued to the respondents, returnable on 12.01.2022.
6. On the returnable date, notify this matter on top of the Board."
3. We have heard Mr.Dave, the learned counsel appearing for the writ-applicants and Mr.Utkarsh Sharma, the learned AGP appearing for the State respondents.
4. There is no escape for the State from the fact that it could not have insisted or compelled the writ-applicants to deposit an amount of Rs.2,48,45,110=00 towards the stamp duty.
5. It appears from the materials on record, more particularly, from page-71 onward that all the delivery orders are in the nature of bill of entry.
6. Way back on 8th September 2011, a Coordinate Bench of this Court (to which one of us J.B.Pardiwala, J. was a party) in the case of State of Gujarat and others vs. Reliance Industries and others (Letters Patent Appeal No.6 of 2011 and allied matters) clarified, or rather, explained the position of law as under :
"76. We hereby hold that by presentation of 'bill of entry' merely on clearance of goods is given for home consumption or for warehousing, and is distinct and different from that of delivery of goods.Page 4 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022
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77. The function of the State requires creation or generation of documents such as [i] Intimation of arrival of ship issued/signed by Customs House Agent of the importer; [ii] Import General Manifest signed by the person in charge of the vessel declaring, inter alia, cargo and goods carried by the vessel; [iii] 'Bill of entry' signed by the importer/consignee declaring particulars in respect of goods, namely, the quantity, numbers of packages, value, vessel's name, country of origin relevant heading of the Customs Tariff under which the goods are classifiable etc. and [iv] 'Bill of Lading' or delivery order etc. But all of such documents will not be an instrument of delivery order for the purpose of Entry 24. The question whether 'bill of lading' is delivery order which is mentioned in one of the documents to be produced along with 'bill of entry' is not required to be answered in the present case, as admittedly, stamp duty is not charged on 'bill of lading' in view of exclusion under Sec. 2[l] of the Bombay Stamp Act. However, one cannot ignore the document to be produced along with the 'bill of entry' [Form Nos. 22 and 23 of Bill of Entry [Forms] Regulations, 1976], where under at sr. no. 5, it has been mentioned: 'bill of lading' or 'delivery order' to be enclosed.
78. We therefore, hold that on 'bill of entry, the authorities cannot charge stamp duty under Art. 24.
79. So far as the judgment passed by the learned Single Judge is concerned, except some observations made in paras 10.1, 13.4 and 14, rest portion does not require any interference or clarification.Page 5 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022
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80. At para 10.1 of the judgment, the learned Single Judge has held that :
"... a delivery order is a document which contains an instruction by the bailor to the bailee to deliver the goods bailed to the person named in the delivery order or the holder thereof. In this case, there must be bailment of goods, the document must be issued by the bailor and the document must contain instructions to the bailee. In the case of bill of lading, it is not a delivery order. ..."
The aforesaid finding is not based on the proper appreciation of law nor is based on the facts of the case.
81. It is not necessary that in all cases, delivery order requires instructions by the bailor to the bailee to deliver the goods bailed to the person named in the delivery order. A 'bill of lading' is also an order relating to delivery of goods, which will be evident from Regulation 16 of the Gujarat Maritime Board [Landing and Wharfage] Regulations, 1956.
82. The Supreme Court, in the case of J.V.Gokal & Co. [Private] Ltd.[supra] has held that 'bill of lading is a writing signed on behalf of the owner of the ship in which goods are embarked acknowledging the receipt of the goods and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading. Therefore, it will be clear that 'bill of lading' is a delivery order. Finding of the learned Single Judge that 'bill Page 6 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022 C/SCA/19862/2021 JUDGMENT DATED: 12/01/2022 of lading' is not a delivery order being erroneous, we hereby set aside such finding at para-10.1 of the judgment.
83. At paras 13.4 and 14 of the impugned judgment, the learned Single Judge held that if the goods are transferred to a third person and the names in the 'bill of lading' and 'bill of entry' are different, the Circular relating to stamp duty is applicable and stamp duty is leviable on bill of entry. We hold that such finding is erroneous as 'bill of entry' is not an instrument relating to transfer of any goods and we have hold that such 'bill of entry' cannot be termed to be an order of delivery in absence of 'bill of lading' or order of delivery; the finding at paras 13.4 and 14 of the judgment to that extent being erroneous we set aside such portion of the judgment passed by the learned Single Judge."
7. In view of the aforesaid, this writ-application succeeds and is hereby allowed. The respondents nos.1, 2 and 3 respectively are directed to refund the amount of Rs.2,48,45,110=00 collected by way of stamp duty from the writ-applicants with 9% interest per annum for the period when the amount was collected till the actual refund of the same. Let this exercise be undertaken at the earliest and completed within a period of four weeks from the date of receipt of the writ of this order.
(J. B. PARDIWALA, J.) (NISHA M. THAKORE, J.) /MOINUDDIN Page 7 of 7 Downloaded on : Thu Jan 13 21:16:02 IST 2022