TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 814
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....anted to the relevant vessel under Section 31 of the Customs Act, 1962 at 0530 hours on September 17, 2015. The petitioners accept that in terms of the proviso to Section 15(1) of the said Act, the date for determination of the duty and tariff valuation of the imported goods was to be reckoned as September 17, 2015 as the date of entry inwards of the vessel would be the effective date if the bill of entry in respect of the imported goods were to be presented prior to the date of entry inwards of the vessel. The petitioners claim that as at the date of entry inwards of the vessel, on September 17, 2015, the rate of duty payable was 7.5 per cent in respect of the value of the goods in terms of a notification published in the Gazette of India on March 17, 2012. 3. On September 17, 2015, notification no. 46/2015-Customs was issued by the Ministry of Finance (Department of Revenue) that sought to alter the duty payable in respect of the said goods from 7.5 per cent to 12.5 per cent of the value thereof. The authority to revise the duty is not questioned. The petitioners assert that the notification did not become effective till such time that it was published in the Official Gazette an....
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....ion of duty and tariff valuation under Section 15 of the said Act of 1962. 6. The petitioners emphasise on Section 25(1) of the Act to suggest that the wording thereof precludes any notification issued thereunder becoming effective prior to its publication in the Official Gazette. The petitioners say that the operative words in sub-section (1) of Section 25 of the said Act are: "... the Central Government ... may ... by notification in the Official Gazette, exempt ..." The petitioners contend that since the provision mandates that what the Central Government may do thereunder is only by notification in the Official Gazette, it is not possible for any notification under Section 25(1) of the said Act to be regarded as effective prior to the publication thereof in the Official Gazette. The petitioners next refer to key sub-section (4) of Section 25 of the said Act. According to the petitioners, two conditions are required to be complied with for a notification under Section 25(1) of the said Act coming into force and becoming effective: the publication of such notification in the Official Gazette; and such publication of the notification in the Official Gazette being offered for sale....
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.... prior to its publication in the Official Gazette. The Customs authorities claimed that the notification published on August 3, 2001 itself. Though the adjudication in the matter did not pertain to a notification under Section 25 of the Act, the High Court referred to Section 25 of the Act by way of analogy to determine the time when a notification under Section 14(2) of the Act came into effect. The following passage from paragraph 12 of the report is of relevance: "12. ... It is also to be seen that the Parliament has added subsections (4) and (5) to Section 25 of the Customs Act by Act No. 25 of 1998 w.e.f. 1-6-1998, prescribing that unless otherwise provided, every notification issued under Section 25(1) shall come into force on the date of its issue by the Central Government for publication in Official Gazette with the further stipulation that such notification shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. This clearly shows the intention of the Legislature that a notification is to be effective from the date when it is issued by the Central Government for publication in the....
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....n Param Industries Limited should not be regarded as good law since the two-judge bench did not take into account a three-judge bench judgment reported at (2000) 160 ELT 431 (Union of India v. Ganesh Das Bhojraj) where the dictum in Harla was explained and held to be inapplicable to a situation as in Section 25(1) of the said Act. 13. In Ganesh Das Bhojraj, the Supreme Court considered a matter governed by Section 25(1) of the said Act as it operated prior to sub-sections (4) and (5) being incorporated into Section 25 by an amendment of 1998. Prior to the 1998 amendment, Section 25(1) of the said Act was similar, in its material terms, to Section 14(2) of the said Act as it then stood. The essence of the Supreme Court opinion is found in the following passage at paragraph 12 of the report: "12. ... Section 25 of the Customs Act empowers the Central Government to exempt either absolutely or subject to such conditions, from the whole or any part of the duty of Customs leviable thereon by a notification in Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of the notificati....
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.... (4) being incorporated in Section 25 of the Act, a notification issued under Section 25(1) of the Act could be said to come into operation and be effective only upon its publication in the Official Gazette. The dictum in Ganesh Das Bhojraj must also be remembered that it is such publication in the Official Gazette that would make a notification effective, without any further act or deed. However, the situation is completely altered after the introduction of sub-section (4) into the provision. Sub-section (4) stipulates when a notification under sub-section (1) would come into force and must be seen to qualify the more general words used in sub-section (1). In the absence of sub-section (4), subsection (1) would imply that a notification under such provision would come into force upon its publication in the Official Gazette. Such provision has also been interpreted thus in Ganesh Das Bhojraj. 17. However, sub-section (4) contains two statutory commands: under clause (a) that a notification under Section 25(1) of the Act would "come into force on the date of its issue by the Central Government for publication in the Official Gazette"; and, clause (b) that the notification should "a....
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....on may be issued for its publication in the Official Gazette, without it being actually published in the Official Gazette and yet the notification be regarded as having come into force. That would be an irrational construction of the provision. But if a notification is issued on a particular date and is required immediately thereupon to be published in the Official Gazette, upon the publication being made in the Official Gazette within a reasonable time (or even at the earliest available opportunity) the notification would be deemed to have come into force on the date of its issue for publication in the Official Gazette. It is possible, therefore, that a notification be issued for publication towards the close of a day and the publication in the Official Gazette takes place the following day, but the notification would have come into effect on the day that it was issued for publication in the Official Gazette, irrespective of the actual publication in the Official Gazette being a day later. 20. It must be recorded here that the petitioners accept that notwithstanding a notification under Section 25(1) of the Act coming into effect later in a day, the duty payable will be governed ....
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....ce of the mandate in clause (b). 23. Indeed, in Ganesh Das Bhojraj, the concurring opinion made a distinction between the operation of the rule as recognised in the substantive judgment to matters involving civil liability and criminal liability and restricted the operation of such rule only to civil liability. 24. The Karnataka judgment in Param Industries Limited imported the provision of Section 25(4) of the Act into Section 14(2) thereof when there may not have been any warrant to do so since the interpretation of Section 14(2) would be governed by the dictum in Ganesh Das Bhojraj on the pari materia wording of Section 25(1) of the Act. The Supreme Court judgment in Param Industries Limited did not have any occasion to deal with Section 25 of the Act. Even though the dictum in the Supreme Court judgment may be seen to be applicable in a situation covered by Section 14(2) of the Act, it cannot govern Section 25 thereof in view of the special feature of sub-section (4) that qualifies the more general provision of sub-section (1) of Section 25 of the Act. 25. Clause (b) of Section 25(4) of the Act does not admit of a construction that the notification as published in the Offici....
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....ation being issued for publication therein, the notification comes into effect immediately upon its issuance for publication in the Official Gazette notwithstanding the publication in the Official Gazette being later. 28. The Union has disclosed in an affidavit that the notification was published in the Official Gazette on September 17, 2015. There is no creditable denial to such assertion. It is not the petitioners' case that the relevant Official Gazette is ante-dated. The Union has also claimed in the affidavit that though the Official Gazette containing the notification may not have been offered for sale on September 17, 2015, but copies of the notification were put on sale, nonetheless. The Union says that it has no cash memo to show since no one purchased the notification on September 17, 2015. There is no reason to disbelieve the Union, nor has anything been shown by the petitioners to detract therefrom. 29. There is no dispute that the notification was issued on the date it is said to have been. There is no dispute that the notification was issued for publication in the Official Gazette on the same day. There is even no dispute that the Official Gazette containing the sai....