AI Drafter 
TaxTMI 
TaxTMI 
2017 (4) TMI 142
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....to the goods in question and in view of the contentions urged, the only question now calling for determination in the present matter is as to whether the amendment notification dated 27.01.2017 is prospective in operation or could have any retrospective operation? Hence, in the given set of facts and circumstances, only a brief reference to the background aspects would suffice. It has been the contention on behalf of the petitioner that the import of Areca Nuts (Betel Nuts), falling under Customs Harmonized System Code (HS Code) No. 08028010 and 08028020 of Customs Tariff Act, 1975, from Myanmar attracted Nil rate of Basic Customs Duty ("BCD") under Notification No. 96/2008-Customs, dated 13.08.2008 (as amended),without any condition; and accordingly, import was allowed by the respondents until first week of the month of September, 2016 but thereafter, the respondent No. 2 directed without any authority of law, that Bank Guarantee to the tune of 40% of the normal duty for import of the said goods be furnished. The relevant contents of the impugned communication dated 06.10.2016 (Annexure-6) had been as under:- "At the outset, it may be pointed out that the import of Are....
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....e imports of Areca Nuts (Betel Nuts) from Myanmar were to be assessed while granting tariff concession to the extent as mentioned alongside the said entry. Even while admitting that no amendment to the principal notification had been carried out, the respondent maintained that in view of some degree of confusion as to the quantum of duty leviable, instructions were issued to allow imports at Nil rate of BCD, but with furnishing of Bank Guarantees so as to protect the interest of revenue. The respondents had further submitted that the Bank Guarantees would be subject to encashment, if 40% duty was found leviable on the imported items in question and if not, the same would be released; and, as the goods were proposed to be assessed provisionally, and differential duty could be estimated, Bank Guarantees were sought to be obtained in terms of para 6 (b) of CBEC Circular No. 38/16-Cus dated 22.08.2016. During the pendency of this writ petition, it was given out before the Court that the issue concerning amendment/clarification of the principal notification in relation to the goods in question was pending before the Central Board of Excise and Customs; and now, it is submitted tha....
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.... 1962"); and the same is neither retrospective or clarificatory in nature. Learned counsel for the petitioner, with reference to the provisions contained in Section 25 of the Act of 1962 and while relying on the decisions of the Hon"ble Apex Court in Commissioner of Customs, Bangalore v. Spice Telecom: 2006 (203) E.L.T. 538 (SC); M/s Pankaj Jain Agencies v. Union of India and ors: 1994 (72) E.L.T. 805 (S.C.); and Union of India and ors v. Ganesh Das Bhojraj: 2000 (116) E.L.T. 431 (SC) has empathically argued that in the absence of any other stipulation and with operation of the plain provisions of law, the said notification dated 27.01.2017 shall only be prospective in operation and hence, cannot be applied to the imports already made before the date i.e., 27.01.2017. Per contra, learned counsel for the respondents Mr. N Mozika has attempted his best to argue that the notification dated 27.01.2017 could be applied to the previous imports also and could be construed retrospective in operation with the submissions that the same is essentially an explanatory one and is clarificatory in nature. Learned counsel has referred to and relied upon the decision of the Hon"ble Apex Court in....
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.... may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty. (4) Every notification issued under sub-section (1) [or sub-section (2A)] shall,- (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette; (b) 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. (5) Notwithstanding anything contained in sub-section (4), where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force. ..... ..... ..... ....." Thus, as per Sub-sec....
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....n in cases where the final assessed income was that of loss. That was for the reason that even in such a case, the tax sought to be evaded would be the tax chargeable on concealed income, as if it were the total income. In the given context, the Hon"ble Supreme Court held that the said Explanation 4 to Section 271(1)(c) was clarificatory and was not substantive in nature. The Hon"ble Supreme Court has pointed out that an explanatory enactment is generally passed to supply an obvious omission and to clear up the doubts; and if a statute is curative or merely declaratory of the existing laws, the same would have retrospective effect. The aforesaid decision relating to the income tax and that too amendment of an explanation so as to bring about more clarity on the meaning assigned to a particular expression does not have any application to the present case for the simple reason that herein, the notification in question is substantive in nature, specifying the rate of exemption of duty on a particular category of goods. Thus, the notification in question, which has been issued under Section 25(1) of the Act of 1962 would be only prospective in operation. Moreover, in view of the una....