TaxTMI 
TaxTMI 
2016 (9) TMI 670
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.... Notification No.36/2001 dated 03.08.2001 and to declare the order of assessment, passed on the strength of the tariff value fixed by the said notification, as arbitrary and illegal. It would suffice, for the disposal of both the Writ Petitions, if the facts in W.P. No.20536 of 2001 are noted. The petitioner in W.P. No.20536 of 2001 carries on business in the import of edible oils including RBD Palmolein oil. They imported 1009.234 metric tonnes of RBD Palmolein oil of edible grade in bulk at 248 U.S. dollars per metric tonne. A bill of entry for home consumption was filed on 03.08.2001 for the import of these goods. By Notification No.36/2001 dated 03.08.2001, the Central Board of Excise and Customs, Ministry of Finance, Government of India, and in the exercise of the powers conferred on them under Section 14(2) of the Customs Act, fixed the tariff value of RBD Palmolein oil at 372 U.S. dollars per metric tonne. On their being called upon to pay the differential customs duty (difference between 372 U.S. dollars per metric tonne prescribed under Notification No.36/2001 dated 03.08.2001 and the invoice value of 248 U.S. dollars per metric tonne), the petitioner invoked the jurisd....
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....he Central Board of Excise and Customs (CBEC for short) to prescribe the tariff value of imported goods is under Section 14(2) of the Customs Act; unlike Section 25, which makes a notification issued thereunder effective from the date on which it is made available for sale to the public, Section 14(2) merely stipulates that the notification issued by the CBEC must be published in the Gazette; the date referred to in the Gazette notification must be presumed to be the date of publication; as the tariff notification was published in the Gazette on 03.08.2001, the tariff value mentioned therein is the value on which customs duty is required to be paid, and not the invoice value; reliance cannot be placed on internal correspondence of the department in this regard; the law declared by the Supreme Court in Param Industries Ltd 2015 (321) E.L.T. 192 (S.C.) is per incuriam as it is contrary to the law declared in the earlier judgments of the Supreme Court in M/s. Pankaj Jain Agencies v. Union of India and Union of India v. Ganesh Das Bhojraj ; and, in view of the law declared by the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra and M.S. Sandhu v. State of Punjab (2014) 6 SC....
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....ion has been issued within the terms and after meeting the requirements of Section 14(2) of the Customs Act. In the facts of the given case, it is clearly averred in the petitions that notification dated 3-8-2001 was not gazetted on the same day. 4th and 5th were public holidays and hence notification must have been published in the Gazette only after 6-8-2001 and petitioners' Counsels have also produced copy of fax message received at Cochin Excise Office which was received at 11:44 p.m. on 3-8-2001 and at that time notification was yet to be published in the Gazette as copy contains endorsement "to be published in Gazette". In the statement of objections filed by respondents it is stated that notification was issued on 3-8-2001 and published on the same day in Gazette of India and displayed on notice board of Department of Publication as admitted in the petition. The petitioners have not admitted publication of notification in Gazette on 3-8-2001 and it is specifically averred that publication in the Gazette was subsequent to 6-8-2001. Further, the petitioners have produced copy of letter dated 1-2-1990 written by Government of India, Ministry of Finance, Department of Rev....
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....o the instant case. As per the intention of the legislature and the order of the Supreme Court a notification can be said to be made on the same day only if it is published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. Failure to do so could not make a notification effective from the date of its issue for publication. This provision added with effect from 1-6-1998 also shows that the date of publication in the Official Gazette and the date of its issue for publication in the Official Gazette can be different. In the present case the said notification was published in the Official Gazette on 6-8-2001 and not before 6-8-2001 and was offered for sale not before 6-8-2001. Therefore, even as per the judgment of the Hon'ble Supreme Court, the said notification is to be effective with effect from 6-8-2001. The learned Central Government Standing Counsel has not been able to show that it was published on 3-8-2001 and they also offered this notification for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi as per the Amendment. For our satisfaction, we g....
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.... forwarded to the Cochin Excise Office by way of a Fax message, contained the endorsement to be published in Gazette; the Fax message was received at the Cochin Excise office at 11.44 p.m. on 03.08.2001; as 04/05-08-2001 were public holidays i.e. Saturday and Sunday, the said notification could only have been published on or after Monday i.e 06.08.2001; the said notification was made available for sale to the public on 06.08.2001, as was evident from the clarification issued by the Assistant Controller (Business), Government of India, Department of Publication, Delhi vide his letter dated 10.09.2001; and Notification No.36/2001, though dated 03.08.2001, was in fact published only on 06.08.2001. A Division Bench of this Court, in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), differed from the judgment of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), and held:- The Karnataka High Court in Param Industries Ltd (2 supra) dealt with the same notification and held that the notification was not published on 03.08.2001; that it was published on 06.08.2001 as per the letter dated 10.09.2001 of the ....
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....to state that in these proceedings, the Respondent has ultimately succeeded inasmuch as this plea has been accepted and the Division Bench of the High Court has concluded that notification issued Under Section 14(2) of the Customs Act cannot be held to have come into force with effect from 03.08.2001. There was some dispute as to whether the notification was published on 03.08.2011 itself or it was published on a later date. However, from the record, it gets revealed that the notification was sent for publication after the normal office hours, i.e., much after 5 p.m. on 03.08.2001. It was almost at the midnight, may be few minutes before 12 in the night. Even if it is to be treated as notification having been published on 03.08.2001 itself, i.e., just before the midnight, an issue has arisen as to whether it could be made effective qua the goods which were already cleared during the day time on the basis of earlier notification. However, it is not necessary to go into this issue at all (emphasis supplied). While none of the facts, noted by the Karnataka High Court in Param Industries Ltd 2002 (150) E.L.T. 3 (Kar.), was considered by the Division Bench of this Court in M/s. K.G.F....
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....rguments or otherwise, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety, forms the basis of judicial procedure and it must be respected at all costs. (Vijay Laxmi Sadho (Dr) v. Jagdish (2001) 2 SCC 247 ). If the earlier judgment is erroneous, or adherence to the rule of precedents results in manifest injustice, differing from the earlier judgment is permissible. (B.R. Constructions(1994) 1 An .W.R.450 (FB)). When a Division bench is disinclined to follow the earlier binding decisions of an other Division bench of the High Court, the proper course is to refer the matter to a Full Bench for its decision. (State of W.B. v. Falguni Dutta (1993) 3 SCC 288). Even if the view expressed by the Division Bench of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.) were to commend acceptance, and not the contrary view expressed by a co-ordinate bench of this Court in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated ....
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.... the notification into force and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays. We are in agreement with the aforesaid view taken by the High Court which is in conformity with the law laid down by this Court in 'Harla v. The State of Rajasthan' [ : 1952 (1) SCR 110] wherein this Court formulated the aforesaid principle in the following manner: The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The ....
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.... for sale. Relying on the Division Bench judgment of this Court in M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), Sri P.S.P. Suresh Kumar, Learned Standing Counsel for Central Excise, would submit, not without justification, that, unlike Section 25 of the Customs Act which stipulates that an exemption notification shall come into force on the date on which it is offered for sale, there is no such prescription in Section 14(2) thereof and, consequently, Notification No.36/2001, issued in exercise of the power conferred by Section 14(2), must be held to have come into force on the date on which it is notified in the Official Gazette ie 03.08.2001. Learned Standing Counsel would also submit that a statutory notification comes into force on the date it is notified in the Official Gazette; the judgment of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.) is per incuriam as it was rendered in ignorance of two earlier Division Bench judgments of the Supreme Court in M/s. Pankaj Jain Agencies (1994) 5 SCC 198 and Ganesh Das Bhojraj(2000) 9 SCC 461; and this Court is bound by the earlier judgments of the Supreme Court, and n....
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....e submissions of Sri P.S.P.Suresh Kumar, Learned Standing Counsel for Central Excise, that Section 25, which relates to grant of exemption, has no application to Notification No.36 of 2001 whereby the tariff value for import of R.B.D. Palmolein oil was fixed, as the said notification is not referable to Section 25 but to Section 14(2) of the Customs Act. The law makes a distinction between an Act of Legislature which comes into force on the date it receives the assent of the President or the Governor, and subordinate legislation which requires publication in some recognised way. (M/s. Pankaj Jain Agencies (1994) 5 SCC 198). Even where the parent statute does not prescribe the mode of publication, a notification will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. (M/s. Pankaj Jain Agencies (1994) 5 SCC 198; B.K. Srinivasan v. State of Karnataka (1987) 1 SCC 658 ). Publication in the Official Gazette, i.e., Gazette of India, is the ordinary method of bringing a rule or subordinate legislation or a statutory notification to the notice of the persons concerned....
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....001 itself. Being the official record evidencing public affairs, the Gazette is admissible and the Court is required to presume its contents as genuine u/s.35 and 38 r/w S.81 of the Evidence Act, 1872. No satisfactory evidence is produced by the petitioners to rebut the said presumption. In view of the decision of the Supreme Court in Ganesh Das Bhoj Raj (3 supra), we respectfully dissent from the decision of the Karnataka High Court in Param Industries Ltd (2 supra), and hold that the said notification was published on 03.08.2001. We reject the contention of the petitioners that it was not published on 03.08.2001 and was not made available for sale till 06.08.2001. (emphasis supplied) While the Division Bench of this Court, in M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), took note of the distinction between Section 25(4) & (5) on the one hand and Section 14(2) of the Customs Act on the other, the Division bench of the Karnataka High Court, in Param Industries Ltd 2002 (150) E.L.T. 3 (Kar.), did not. The fact, however, remains that the judgment of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (....
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....f per incuriam. While the earlier Division bench judgments of the Supreme Court on a question of law may be required to be followed by the High Court, and not a latter Division bench judgment of the Supreme Court which did not notice the earlier Division bench judgments of the Supreme Court, it must be borne in mind that the very same issue which arose for consideration of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.), in relation to the very same notification (Notification No.36/2001), arises for consideration in these Writ Petitions also. The questions which, therefore, necessitate examination is whether it is open to the High Court, to take a view different from that of the Supreme Court, to hold that the said notification came into force only on 03.08.2001, and not thereafter on or after 06.08.2001? Would such an exercise not amount to the High Court sitting in judgment over the order of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.)? Can this Court hold that the Division Bench judgment of the Supreme Court in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.) is per incuriam as it was rendered in ignorance of the earlier Division....
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....nnot be forsaken by any Court, be it even the highest Court in a State, oblivious of Article 141 of the Constitution of India. (Chandra Prakash v. State of U.P. (2002) 4 SCC 234 ; State of Orissa v. Dhaniram Luhar (2004) 5 SCC 568 ). Blacks Law Dictionary defines a decision as a determination arrived at after consideration of facts and, in legal context, law; and an opinion as the statement by a Judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based. A Decision is not necessarily synonymous with opinion. A decision of the Court is its judgment; the opinion is the reasons given for that judgment, or the expression of the views of the Judge. In the case of a decision, the appellate structure is exhausted after a pronouncement by the Supreme Court. The only option left to the parties is of review or curative jurisdiction. (Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (2012) 10 SCC 1 ). As the Union of India has exhausted the appellate structure on the question as to when Customs Notification No.36/2001 came into ....