2020 (9) TMI 422 - HC - Customs

Customs Act Amendment Ruled Unconstitutional, Refund Ordered for Excess Duties

The court declared Section 25(4) of the Customs Act, 1962, as amended by the Finance Act, 2016, unconstitutional. It also ruled that Notification No. ... Constitutional Validity of Section 25(4) of the Customs Act, 1962 as amended Finance Act, 2016 - Increase in duty on crude palm oil from 30% to 44% - Electronic publication of notification versus publication of notification in the official gazette - vires of Notification no.29 dated 1st March 2018. Whether the petitioners would be liable to pay increased rate of duty as per the Notification issued under Section 25(1) of the Customs Act on the same day on which the bills of entry were field by the petitioner, but the notification was made available in official gazette in electronic form subsequently, in view of the provisions of Section 25(4) of the Customs Act as amended by the Finance Act, 2016? - Whether the provisions of Section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016 is arbitrary, illegal, ultra vires and unconstitutional or not? HELD THAT:- The above questions came for the consideration before the Andhra Pradesh High Court in M/S RUCHI SOYA INDUSTRIES LTD. VERSUS UNION OF INDIA [2019 (9) TMI 1374 - ANDHRA PRADESH HIGH COURT], the petitioner and the Andhra Pradesh High Court after considering the submissions canvassed by both the sides has held as under for striking down Section 25(4) of the Customs Act declaring as arbitrary and contrary to Section 25(1)(2A) of the Customs Act, 1962 - In view of above judgment and order of the Andhra Pradesh High Court dealing with the same issue, we are of the opinion that the same should also apply to the cause of action within the territorial jurisdiction of this Court also so as to maintain consistency for application of the provision of the Customs Act, 1962, which is a Central Act. As held by the Supreme Court in case of KUSUM INGOTS & ALLOYS LTD. VERSUS UNION OF INDIA [2004 (4) TMI 342 - SUPREME COURT], the parliamentary legislation without receiving the consent of the President of India and published in a official gazette unless specifically excluded will apply to entire territory of India. If passing of the legislation gives rise to cause of action, the writ petition questioning the constitutionality thereof can be filed in any High Court of the country having requisite territorial jurisdiction and an order passed on writ petition questioning the constitutionality of Parliamentary Act, where interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India will effect throughout the territory of India, subject to applicability of the Act. The provisions of Section 25(4) of the Customs Act, 1962 is declared as arbitrary and contrary to Section 25(1) & (2)(A) of the Customs Act, 1962. The respondents are therefore, directed to refund the excess amount of custom duty and differential amount of IGST collected from the petitioners for clearance of imported goods for home consumption as per the Notification published subsequently to the date of filing of bills of entry with simple interest @ 6% p.a. from the date of deposit till the date of payment - Petition allowed. Issues Involved:1. Constitutionality of Section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016.2. Validity and applicability of Notification No. 29/2018-Cus dated 1st March 2018.3. Determination of the effective date for the increased customs duty under Notification No. 29/2018-Cus.4. Refund of excess customs duty and IGST paid by the petitioners.Detailed Analysis:1. Constitutionality of Section 25(4) of the Customs Act, 1962:The petitioners challenged the constitutionality of Section 25(4) of the Customs Act, 1962, as amended by the Finance Act, 2016, arguing it was arbitrary, illegal, and ultra vires. They contended that the amended section, which states that notifications come into force on the date of issue for publication in the official gazette, was inconsistent with Section 25(1) and (2A) which require publication in the official gazette for the notification to take effect. The court concurred with the Andhra Pradesh High Court's judgment, declaring Section 25(4) as arbitrary and contrary to Section 25(1) and (2A) of the Customs Act, 1962.2. Validity and Applicability of Notification No. 29/2018-Cus:The petitioners argued that Notification No. 29/2018-Cus dated 1st March 2018, which increased the basic customs duty from 30% to 44%, was not applicable to their goods as the notification was electronically published on 6th March 2018. The court held that the notification could not be applied retrospectively to the goods for which bills of entry were filed on 1st March 2018, prior to the electronic publication of the notification.3. Determination of the Effective Date for the Increased Customs Duty:The court examined whether the increased customs duty under Notification No. 29/2018-Cus was effective from 1st March 2018 or from the date of its electronic publication on 6th March 2018. The court ruled that the notification would only come into force from the date of its publication in the official gazette, which was 6th March 2018. Therefore, the increased duty could not be applied to the goods for which bills of entry were filed on 1st March 2018.4. Refund of Excess Customs Duty and IGST:The court directed the respondents to refund the excess customs duty and differential IGST collected from the petitioners. The refund was to be made with simple interest at 6% per annum from the date of deposit until the date of payment. This decision was based on the finding that the increased duty was not applicable to the goods in question as the notification was not published at the time the bills of entry were filed.Conclusion:The court declared Section 25(4) of the Customs Act, 1962, as amended by the Finance Act, 2016, unconstitutional. It also ruled that Notification No. 29/2018-Cus dated 1st March 2018 was effective only from 6th March 2018, the date of its electronic publication. Consequently, the court ordered the refund of excess customs duty and IGST collected from the petitioners.