TaxTMI 
TaxTMI 
2020 (7) TMI 429
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....rd to payment of customs duty and Integrated Goods and Service Tax (IGST) for clearance of the subject goods, which the respondent department claimed on the strength of the notification dated 1.3.2018. 3. It is the contention of the petitioner that the said notification dated 1.3.2018 was updated on 2.3.2018 and came to be published in the Official Gazette on 6.3.2018. The petitioner contends that the customs duty, as was applicable, had already been paid along with the IGST on 1.3.2018 and 5.3.2018 respectively and, therefore, the enhanced amount realised from the petitioner is unlawful. 4. The petitioner has come up with a case that if the notification was published only on 6.3.2018, the same cannot have any application on the transaction of the petitioner carried out prior to the said date, and the respondents cannot compel the petitioner to pay any enhanced rate of duty. The respondents, however, reassessed the customs duty on the petitioner and raised an additional demand, which the petitioner deposited under protest, including the differential IGST amount. It is only on payment of the same that the imported goods were released to the petitioner. In effect, the contentio....
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....on in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon". Whereas, Sub-Section (4) of Section 25, while declaring the date of enforcement of such notification, prescribes that it shall come into force on the date of its issuance by the Central Government for publication in the Official Gazette. Sub-Section (4) of Section 25 is quoted hereunder for ready reference: "Sec.25(4):Every notification issued under subsection (1) or sub-section (2A) shall, unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette". 2. The argument is that Sub-Section (4), even though speaks about the same notification that is to be issued under Sub-Section (1) to be notified in the Official Gazette, defines the date of enforcement as the date of issue itself meaning thereby that its enforceability is dependent upon the date of issuance and not the date of its publication in the Official Gaze....
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.... 8. To substantiate the aforesaid submission, learned counsel for the petitioner has relied on the Division Bench Judgment of High Court of Andhra Pradesh in W.P.Nos.4533 and 4534 of 2019 dated 28.09.2019, filed by the present petitioner itself. It is therefore contended that the aforesaid ratio of the judgment, whereby, the said provision occurring in Section 25(4) of the Act to be declared as arbitrary and inconsistent to Section 25(1) of the Customs Act, should be adopted and the same relief be extended in the present writ petition. 9. Learned counsel for the respondents / Union of India and its authorities prays that there are other dimensions to the aforesaid arguments and therefore, in order to dissuade the Bench from accepting the ratio of the High Court of Andhra Pradesh, the learned counsel may be granted some time to assist the Court on the arguments so advanced. List on 16.12.2019." 9. When the matter was again taken up, the following order came to be passed on 5.3.2020: "We have heard learned counsel for the petitioner and learned counsel for the respondents. We have passed the following order after having heard learned counsel for th....
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....equirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette: Provided that where any rule, regulation, order, bylaw, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form." 31. In terms of the Section 8 of the IT Act, the following Office Memorandum (OM) was issued by the PSP Division in the Ministry of Urban Development on 30th September, 2015: "No. O-17022/1/2015-PSP-I Government of India Ministry of Urban Development (PSP Division) Nirman Bhawan, New Delhi Dated: 30th September, 2015 OFFICE MEMORANDUM Subject: E-publishing of Government of India Gazette Notification Discontinuing of the practice of physical printing. In compliance with the provisions of Section 8 of the Information Technology Act, 2000, it has been decided in consultation with Department of Legal Affairs to switch over to exclusive e- publishing of the Government of India Gazette Notification on its offic....
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....the same. Therefore, we, prima facie, do not find any reason to differ from the same. 6. In the aforesaid background, we direct the respondents to proceed in the matter and either take steps to refund the amount which the petitioner has paid under protest keeping in view the judgments cited at the bar, bereft of the impugned Notification herein, or show cause by filing a counter affidavit within three weeks from today. 7. In the event, no counter affidavit is filed nor any information tendered with regard to filing of Special Leave Petition, this Court will proceed further to pass final orders. List the matter on 01.04.2020." The Court had made it clear to the respondents to take a final call in the matter as it has been delayed for more than 4/5 months in spite of the fact that the petitioner had cited judgments in its favour entitling it to receive refund of the enhanced amount of duty paid, which had been incorrectly realized by the respondents. 10. The matter was again listed on 5.6.2020, when we passed the following order: "A prayer has been made by learned counsel for the respondents that even though time had been granted by this Court on 05.0....
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.... ourselves in complete agreement with. 16. On the issue of the date of publication, the Delhi High Court in M.D.Overseas Ltd. (supra) while dealing with a similar notification held that the notification would come into effect from the date and time when it was electronically printed in the gazette and mere uploading on the website would have no significance. Paragraphs (24) to (33) of the said judgment are extracted herein under: "24. It is averred, in the writ petition, that the above Notifications and Public Notice were published, in the Official Gazette, only on 28th August, 2017. The petitioners would seek to contend that the impugned Notification Nos. 24/2015-2020 and 25/2015-2020, both dated 25th August, 2017, became effective only consequent on their publication in the Official Gazette. The gold coins in questions having been imported prior thereto, inasmuch as they had left the country of dispatch on 25th August, 2017, Notification Nos. 24 and 25, both dated 25th August, 2017 and Public Notice No. 20, also dated 25th August, 2017, having been published in the Official Gazette three days thereafter, on 28th August, 2017, could not apply to them. 25. In o....
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....OFFICE MEMORANDUM Subject: E-publishing of Government of India Gazette Notification Discontinuing of the practice of physical printing. In compliance with the provisions of Section 8 of the Information Technology Act, 2000, it has been decided in consultation with Department of Legal Affairs to switch over to exclusive e-publishing of the Government of India Gazette Notification on its official website with effect from 1-10-2015 and to do away with the physical printing of Gazette Notification. The date of publishing shall be the date of e-publication on official website by way of electronic gazette in respect of Gazette Notifications. The Gazette Notification can be accessed and downloaded/printed from the official e-Gazette website i.e. www.egazette.nic.in free of cost. All the Ministries and Departments are requested to give wide publicity to bring this to the notice of all attached & subordinate offices, PSU, etc., as well as various stakeholders including all private users. This issues with the approval of competent authority. Sd./- (Kailash Choudhary) Under Secretary to the Govt. of India" (Emphasis supplied) ....
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....tion in the Official Gazette. Therefore, to avoid inconvenience, serious absurdity, confusion or friction, contradiction and conflict between various provisions, amended provision of sub-section (4) of Section 25 which is enacted by arbitrary exercise of power by the Legislature, is liable to be struck down. 77. The notification was published on 6.3.2018 which is impugned in these writ petitions, published electronically on 6.3.2018. In view of the decision taken by the Government of India in terms of Section 8 of the Income Tax Act, to avoid physical printing of Gazette notification to publish the same exclusively by electronic mode, so as to attribute knowledge to the public at large. The notification was signed by Rakesh Sukul on 6.3.2018 at 19:15:13 + 05'30'. When notification needs to be signed digitally and only when the notification was uploaded and published in the Official Gazette, the same is made available for public. Perhaps, to avoid such contingency to give effect to the notification on the date of publication, the Government of India amended sub-section (4) of Section 25 of Customs Act, 1962. But, sub-section (1) and sub-section (2- A) of Section 25 ....