TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 903
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....l Appeal No 3265 of 2020 (Arising out of SLP (C) No.7059 of 2020) Civil Appeal No 3267 of 2020 (Arising out of SLP (C) No.6451 of 2020) Civil Appeal No 3269 of 2020 (Arising out of SLP (C) No.7063 of 2020) Civil Appeal No 3270 of 2020 (Arising out of SLP (C) No.7064 of 2020) Civil Appeal No 3271 of 2020 (Arising out of SLP (C) No. 7057 of 2020) Civil Appeal No 3272 of 2020 (Arising out of SLP (C) No.5920 of 2020) Civil Appeal No 3273 of 2020 (Arising out of SLP (C) No.7065 of 2020) Civil Appeal No 3274 of 2020 (Arising out of SLP (C) No.7066 of 2020) Civil Appeal No 3275 of 2020 (Arising out of SLP (C) No.7067 of 2020) Civil Appeal No 3276 of 2020 (Arising out of SLP (C) No.6189 of 2020) Civil Appeal No 3277 of 2020 (Arising out of SLP (C) No.7543 of 2020) Civil Appeal No 3278 of 2020 (Arising out of SLP (C) No.6683 of 2020) Civil Appeal No 3279 of 2020 (Arising out of SLP (C) No.7068 of 2020) Civil Appeal No 3259 of 2020 (Arising out of SLP (C) No.5036 of 2020) Civil Appeal No 3264 of 2020 (Arising out of SLP (C) No.5823 of 2020) Civil Appeal No 3256 of 2020 (Arising out of SLP (C) No.4960 of 2020) Civil Appeal No 3254 of 2020 (Arising out of SLP (C) N0.4959 of 2020) Civil Appeal ....
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....e of duty to 200 per cent was issued and uploaded, the enhanced rate of duty was not attracted. The High Court held that the importers were liable to pay the duty applicable at the time when the bills of entry for home consumption were filed under Section 46 of the Customs Act, 1962.- "the Customs Act" The Union of India was ordered to release the goods within seven days on the payment of duty 'as declared and assessed' without applying the notification enhancing the rate of duty on goods originating in Pakistan. 4 The Union of India is in appeal. 5 The judgment of the High Court is titled as Rasrasna Food Private Limited versus Union of India. Chronologically, the first petition listed before this Court by Special Leave under Article 136 of the Constitution is in the case of G S Chatha Rice Mills. Since the issues of law which have been raised are common to the batch of appeals, they have been heard together. B The backdrop 6 The First respondent is a partnership firm based in Amritsar which is, inter alia, engaged in the import of cement. It imported a consignment of fourteen hundred bags of cement from Pakistan under an invoice dated 1 February 2019. A truck bearing r....
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....for setting aside (i) the assessment of the bill of entry to a duty of 200%; (ii) Notification 5/2019 dated 16 February 2019; and for a direction to CWC to issue a detention memo and the release of the goods. C Petitions before the High Court 8 The batch of petitions before the High Court involved cases of other similarly situated importers. The facts pertaining to the writ petitions, as gleaned from the judgment of the High Court, are summarized below: (i) the goods were imported in the ordinary course of trade from Pakistan; (ii) the goods entered Indian territory through the Attari border at Amritsar before 18:00 hours on 16 February 2019; (iii) the importers had filed bills of entry under Section 46 of the Customs Act, before the close of working hours, seeking clearance of the goods for home consumption; (iv) the value and description of the goods were declared; (v) the importers had self-assessed the goods in terms of the prevailing notifications and had filed the bills of entry in the EDI system; (vi) the declarations were subject to verification by the customs department which did not dispute them and generated duty payment TR-6 challans; (vii) since ....
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....the Customs Act, 1962 the relevant date for determining the rate of duty is the date of the presentation of the bill of entry. The submission was that the amended rate of duty under notification 5/2019 came into force on 16 February 2019; hence, the importers were liable to pay duty on the basis of the amended rate. The submission was that the customs authorities were entitled to re-assess the bills of entry under Section 17(4). D The judgment of the High Court 11 The High Court, after analyzing the provisions of Sections 8A and 11A of the Customs Tariff Act, 1975 and Sections 12, 15, 17, 46 and 47 of the Customs Act,1962 held that: (i) The relevant date for the determination of duty is the date of the presentation of the bill of entry, which, in the facts of this case, corresponds to the date of the entry of the vehicle carrying the goods into India; (ii) The bills of entry were presented on 16 February 2019 before the issuance of notification 5/2019; (iii) The dual requirements of Section 15 namely, the filing of the bill of entry and the entry of the vehicle were fulfilled before the publication of notification 5/2019; (iv) The amended rate of duty was not applicab....
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....encement of the day; (ii) The schedule is a part of the Act, and hence an amendment to it is an amendment to the Act; (iii) Sub-section (2) of Section 8A of the Customs Tariff Act applies the provisions of sub-sections (3) and (4) of Section 7 to a notification which is issued under Section 8A(1); (iv) A notification under Section 8A(1) amending the first schedule has to be placed before each House of Parliament and is subject to its approval and modification; and (v) An amendment to the schedule, upon the exercise of powers under Section 8A, constitutes an amendment of the Act itself which passes through a process of receiving Parliamentary sanction and is subject to its approval. C (i) In view of (B) above, since the schedule to the Customs Tariff Act is a part of the enactment, the provisions of the General Clauses Act 1897-"the General Clauses Act" are attracted to an amendment effected under section 8A(1); (ii) Section 3(7) of the General Clauses Act defines the expression 'Central Act' to mean an Act of Parliament while Section 3(13) defines 'commencement' to mean the day on which an Act or Regulation comes into force; (iii) Under Section 5(3) of the Gener....
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....ake place every single day. Rule 5(1) of the Information Technology (Electronic Service Delivery) Rules, 2011 mandates maintenance of timestamps for any governmental electronic records; (ii) In exercise of the powers conferred by Section 157 read with Sections 46 and 47 of the Customs Act, the Central Board of Indirect Taxes and Customs has passed the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018-"the Regulations 2018"; (iii) Under Regulation 4(2), the bill of entry is deemed to have been filed and self-assessment completed when, after the entry of the electronic integrated declaration on the customs automated system, a bill of entry is generated by the Indian Customs Electronic Data Interchange System and the self-assessed copy of the bill of entry may be electronically transmitted to the authorized person; (iv) In terms of the provisions of Section 15(1)(a), where goods are entered for home consumption under Section 46, the rate of duty is the rate in force on the date on which a bill of entry in respect of such goods is presented under Section 46. The Regulations of 2018 have been made pursuant to Section 46 and contain a deemi....
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....ll of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft or the vehicle by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be. The provisions of this section shall not apply to baggage and goods imported by post." (emphasis supplied) 17 Section 12 specifies that the rates of duty on goods imported and exported are those which are provided in the Customs Tariff Act or in any other law. Section 12 does not indicate when the duties under those enactments will come into being or force. Section 15 specifies the date with reference to which the rate of duty and tariff valuation of imported goods is determined. Clauses (a), (b) and (c) of sub-section (1) of section 15 contain distinct provisions which apply to: (i) goods entered for home consumption under Section 46; (ii) goods cleared from a warehouse under Section 68; and (iii) other goods. Where goods are entered for home consumption under Section 46, the rate of duty and tariff valuation is to be the rate and valuation "in force" "on the date on which" a bill of entry in ....
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....r vehicle, the rate of duty is determined with reference to the date of entry inwards or the arrival of the aircraft or vehicle. This is a consequence of the deeming fiction under the proviso, as a result of which the presentation of the bill of entry, when filed prior to the arrival of the goods, is deemed to be on the date of the entry inwards or the arrival of the aircraft or vehicle. Hence, implicit in the provisions of Section 15(1) are the dual or (as counsel before the court described them) the twin requirements of (i) the presentation of the bill of entry; and (ii) the entry inwards of the vessel or, as the case may be, the arrival of the aircraft or vehicle. 19 Section 17 provides for the assessment of duty. Section 46 provides for the entry of goods on importation. Both the provisions of Section 17 and Section 46 have undergone legislative changes by Act 8 of 2011 and by the Finance Act of 2018. By Act 8 of 2011, Section 17 was substituted and Section 46 was amended to provide for the presentation in the electronic form of a bill of entry for home consumption or warehousing. Section 46 provides as follows: "46. Entry of goods on importation.-(1) The importer of any good....
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.... of entry shall ensure the following, namely:- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force......." (emphasis supplied) Sub-section (1) of Section 46 requires an importer of goods to make an entry by presenting a bill of entry for home consumption or warehousing "electronically on the customs automated system" to the proper officer "in such form and manner as may be prescribed". The word 'electronically' was introduced by Act 8 of 2011 with effect from 8 April 2011. The provision for the presentation of the bill of entry on the customs automated system and in 'such form and manner as prescribed' was introduced by the Finance Act of 2018. Under sub-section (3) of Section 46, a bill of entry under sub-section (1) must be presented before the end of the day following the day on which the aircraft, vessel or vehicle carrying the goods arrives at a customs station at which the goods are to be cleared for home consumption or warehousing (....
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....moval of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received." (emphasis supplied) Prior to its substitution by Amending Act 8 of 2011, Section 17 contained requirements for (i) examination and testing of goods; and (ii) assessment. Section 17, as it stood prior to substitution, was in the following terms: "17. Assessment of Duty. - (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under, section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in section 85, be assessed. (3) For the purpose of as....
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....b-section (4), where it is found on verification, examination or testing of goods or otherwise that the self-assessment has not been done properly the proper officer is entrusted with a power of re-assessment. Sub-section (5) requires the passing of a speaking order upon re-assessment. 21 Section 47 provides for the clearance of goods for home consumption: "Clearance of goods for home consumption. (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption: Provided that such order may also be made electronically through the customs automated system on the basis or risk evaluation through appropriate selection criteria: Provided further that the Central Government may, by notification in the Official Gazette, permit certain class of importers to make deferred payment of said duty or any charges in such manner as may be provided by rules. (2) The importer shall pay the import duty-- (a) on the date ....
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....abling power conferred by Sections 46 and 47 and Section 157 which contains a general power to make regulations. Section 157(2)(a) was amended by the Finance Act 2018 (Act 13 of 2018) to allow for the power to frame regulations on the form and manner of delivering or presenting inter alia a bill of entry. Regulation 2(c) of the 2018 Regulations defines the expression bill of entry in the following terms: "(c) "bill of entry" means electronic integrated declaration accepted and a unique number generated and assigned to that particular bill of entry by the Indian Customs Electronic Data Interchange System, and includes its electronic records or print-outs" Regulation 2(d) defines the expression electronic integrated declaration: "(d) "electronic integrated declaration" means particulars relating to the imported goods that are entered in the Indian Customs Electronic Data Interchange System" Under Regulation 2(e), "ICEGATE" is the customs automated system of the Central Board of Indirect Taxes and Customs. Regulation 3 requires the authorized person (defined in Regulation 2(b) 7 2(b) "authorised person" means an importer or a person authorised by him who has a valid licence u....
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.... completed when after the entry of the electronic integrated declaration on the customs automated system (or by data entry through a service centre) a bill of entry number is generated by the Indian Customs Electronic Data Interchange ("EDI") System. The self-assessed copy of the bill of entry may be electronically transmitted to the authorized person under the deeming fiction which is created by Regulation 4(2). Hence, the bill of entry is deemed to be filed and the self-assessment completed when the requirements of Regulation 4(2) are fulfilled namely by the (i) entry of the declaration on the customs automated system; and (ii) generation of a bill of entry number by the EDI system. Following this, the self-assessed copy of the bill of entry is electronically transmitted to the authorized person. 23 In terms of the provisions of Section 15(1)(a), in the case of goods which are entered for home consumption under Section 46, the date of presentation of the bill of entry determines the rate of duty and tariff valuation. Under Section 47(2)(a), the importer is obliged to pay the import duty on the date of the presentation of the bill of entry in the case of self-assessment. Regulati....
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....tion 4(2) specifies when presentation of the bill of entry and 'selfassessment' are complete. The rate of duty stands crystallized under Section 15(1)(a) once the deeming fiction under Regulation 4(2) comes into existence. The regulations have to be read together with the statutory provisions contained in Section 15(1)(a) and Section 46, while determining the rate of duty. G Precedent 25 At this stage it is necessary to analyze the precedent on the subject. In Bharat Surfactants (Private) Limited vs. Union of India (1989) 4 SCC 21 ("Bharat Surfactants"), customs duty was imposed on the import of edible oil by the petitioners at the rate of 150 per cent on the basis that the import was made on the date of the inward entry, which was 31 July 1981. The vessel arrived and registered in the Port of Bombay on 11 July 1981 but since a berth was not available, the cargo could not be unloaded. The vessel left Bombay and proceeded to Karachi and returned towards the end of July 1981. The rate of customs duty prevailing on 11 July 1981 was 12.5 per cent and the contention of the importer was that but for the fact that the vessel was unable to secure a berth, it would have delivered t....
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....icable to any imported goods shall be the rate and valuation in force, in the case of the goods entered for home consumption under Section 46, is the date on which the bill of entry in respect of such goods is presented under that section and in the case of goods cleared from a warehouse under Section 68, the date on which the goods are actually removed from the warehouse. By operation of the proviso if a bill of entry has been presented before the date of entry inwards the bill of entry shall be deemed to have been presented "on the date of such entry inwards" but would be subject to the operation of Sections 46 and 31(1) of the Act." In that case the ship had arrived at the Port of Madras on 20 February 1989 and was ready to discharge her cargo. Though the import manifest was delivered, the cargo could not be handled as a result of a continuous strike. The bill of entry for clearance of goods for home consumption was presented on 27 February 1989. The ship arrived into the port and was berthed on 2 March 1989 on which date the entry inwards was granted. From 1 March 1989, the rate of duty was increased. The court rejected the contention that since the vessel had entered Indian ....
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....presented is the duty which is applicable under Section 15(1)(a). It is in view of this principle that the entry of the vessel into territorial waters, before the presentation of the bill of entry, has been held not to fix the rate of duty where the rate of duty has undergone a change. H Interpreting 'day' and 'date' 27 The expressions "day" and "date" have been construed in varying contexts in the precedents of this Court. The underlying feature of the decisions is that the content of those expressions is based on the context. In Raj Kumar Yadav vs. Samir Kumar Mahaseth (2005) 3 SCC 601, the limitation provided by Section 81 of the Representation of the People Act 1951 expired on the 45th day from the date of the election. Interpreting the provision, Chief Justice R.C. Lahoti while speaking for a three judge Bench of this Court observed : "6...The word "day" is not defined in the Act. It shall have to be assigned its ordinary meaning as understood in law. The word "day" as per English calendar begins at midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context." Hence, in that case the Election Petition could ....
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....d begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances." 31 The expression 'date' in Article 54 was held to be suggestive of a specified date in the calendar. In Pashupati Nath Singh vs. Harihar Prasad Singh (1968) 2 SCR 812, a three judge Bench construed the words "on the date fixed for scrutiny" in Section 36(2)(a) of the Representation of the People Act 1951. Interpreting those words, the Court held that the qualification of a candidate must exist from the earliest moment of the day of scrutiny: "13. It seems to us that the expression "on the date fixed for scrutiny" in Section 36(2)(a) means "on the whole of the day on which the scrutiny of nomination has to take place". In other words, the qualification must exist from the earliest momen....
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....he first day is excluded; (2) that, if the named date is the beginning of an indefinite period then prima facie the first day is included. I say prima facie because in my view there must be exceptions". In his view, the expression "from a named date" meant "on and after that day". Hence the date on which the notification was published in the official Gazette was held to apply to all plaints which were filed on 5 May 1922. Justice Coutts Trotter, arrived at the same conclusion as the Chief Justice, following a different path, which he set out in the following observations, on page 691 : "What I conceive to emerge from the decided cases is this: that as the law in general neglects fractions of a day you must either exclude or include the whole of the day with which a given statute or rule or regulation deals. And the exclusion or inclusion, I think, is clearly provided in two other rules. If you are fixing the point of time at which a certain state of things is to be called into existence, that state of things comes into existence at midnight of the day preceding the day at which or on which or from which or from and after which the new state of things begins. In such cases the s....
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....rmining whether the date of publication is to be included or excluded. I do not think the High Court is part of the tax gathering machinery of the Government or has any concern with the consequences to the Government of their decision on the construction of the rule. The rule, I take it, was passed by the Judges of the High Court in the exercise of the powers entrusted to them to control the administration of justice and the fees were raised because in the opinion of the Judges it was just and proper that litigants ought to pay more for the benefits which they derive by resorting to the jurisdiction of the High Court". In the view of the learned Judge, the notification having been received in the Registry of the High Court at 5pm at the office closing hour, litigants who had filed plaints before either or they or the office had knowledge of the publication "did what was perfectly valid under the old rules and they presented the plaints with Rs. 30 stamp irrespective of the value of their claim". Looking at it from the citizens' perspective, the learned Judge observed, on page 704: "A person who files a plaint which is properly stamped and which is in order at the time of ....
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....ent case is interpreting the terms of a fiscal levy. The court here has to construe the scheme and provisions of the Customs Act and their relationship with the provisions of the Customs Tariff Act. The provision which falls for construction is Section 15(1) of which both clauses (a) and (b) use the expression "on the date". In clause (a), the rate of duty and valuation is the rate and valuation in force on the date on which a bill of entry is presented under Section 46 where goods are entered for home consumption. Under Clause (b), where goods are cleared from a warehouse under Section 68 it is the date on which a bill of entry for home consumption is presented under that Section which is determinative of the rate and valuation. 35 Mr Natraj is textually right when he emphasizes that Section 15 (1) contains a reference to date and not time. But there are two responses to his line of approaching the issue. First, the legislature does not always say everything on the subject. When it enacts a law, every conceivable eventuality which may arise in the future may not be present to the mind of the lawmaker. Legislative silences create spaces for creativity. Between interstices of legis....
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....uage of the law, its operation is prospective. To accept the submission of the ASG would mean that the notification under Section 8A would have effect prior to its making, something which Parliament has not incorporated by language or intent. If, as we hold, the notification operates for the future beginning with the point of its adoption, it cannot operate to displace the rate of duty which is applicable when a bill of entry is presented for home consumption under Section 46. The submission of the Union cannot be accepted in view of the provisions contained in Section 46 for the presentation of a bill of entry for home consumption in an electronic form on the customs automated system. While making that provision, specifically by means of an amendment by Act 8 of 2011 and later by the Finance Act of 2018, Parliament used the expression "in such form and manner as may be prescribed." Regulation 4(2) of the Regulations of 2018 provides when the bill of entry shall be deemed to have been filed and selfassessment completed. The legal fiction which has been embodied in Regulation 4(2) emanates from the enabling provisions of Section 46. The provisions of Sections 15(1)(a), 17, 46(1) and....
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.... is necessary at the outset to advert to the provisions of the Customs Tariff Act. Under Section 8A, an emergency power is vested in the Central Government to increase the import duties leviable on an article included in the First schedule where it is satisfied that circumstances rendering it necessary to take immediate action exist. Section 8A is in the following terms: "8A- Emergency Power of Central Government to increase import duties- Where in respect of any article included in the First Schedule, the Central Government is satisfied that the import duty leviable thereon under section 12 of the Customs Act, 1962 (52 of 1962) should be increased and that circumstances exist which render it necessary to take immediate action, it may, by notification in the Official Gazette, direct an amendment of that Schedule to be made so as to provide for an increase in the import duty leviable on such article to such extent as it thinks necessary: Provided that the Central Government shall not issue any notification under this subsection for substituting the rate of import duty in respect of any article as specified by an earlier notification issued under this sub-section by that Gove....
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....a notification within a period of fifteen days of its being laid before the House of the People. Where Parliament is in session, the notification has to be laid before the House as soon as may be after it is issued and, if it is not, then within seven days of the legislature re-assembling. The approval of parliament has to be sought within the specified period. The notification would cease to have effect or take effect with modifications, if Parliament so directs. In the case of a notification which has been issued under Section 11A, sub-section (2) does not require the Central government to seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days from the date on which the notification has been laid before the House of the People. Sub-section (2) of Section 11A merely states that the notification shall either cease to have effect or have effect in a modified form if it is so directed by both the Houses of Parliament. 39 A notification which is issued in terms of the provisions of Sub-section (1) of Section 8A is akin to the exercise of a delegated legislative power. The Central government is empowered to issue a notification enhanc....
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....which the Act or Regulation comes into force." The definition of the expression "commencement' is also relatable to a "Central Act" or "Regulation". 41 A notification issued by the Central government under sub-section (1) of Section 8A does not fulfill the description of a Regulation under Section 3(50) of the General Clauses Act. The expression is confined to specific species of Regulations. The definition does not extend to all subordinate legislation or to notifications issued by a delegate of the legislature acting in pursuance of a statutory authority. 42 The expression "Central Act" is defined by using the expressions "shall mean" and "shall include". The use of these expressions indicates that the definition is exhaustive. Insofar as is relevant, the expression 'Central Act' is defined to mean an Act of Parliament. A notification which has been issued under Sub-section (1) of Section 8A of the Customs Tariff Act is not an Act of Parliament. The notification has the effect of amending the First schedule. The Central government as a delegate of the legislature has been entrusted with the authority to issue such a notification. That does not make the notification an Act of ....
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....45 In Securities and Exchange Board of India vs. Magnum Equity Services Ltd (2015) 16 SCC 721, a two judge Bench of this Court considered whether the General Clauses Act is applicable to the interpretation of the SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992. The Court observed that the Regulations were framed by SEBI in exercise of the powers conferred on it by Section 30 of the SEBI Act, 1992. Section 31 requires the rules and regulations to be laid before Parliament. Justice Vikramajit Sen concluded as follows: "12. The main contention raised by the learned Senior Counsel for the appellant is based on the application of the General Clauses Act, 1897 which under Section 13(2) states that plural includes singular. However, before we consider Section 13, we shall have to determine whether the General Clauses Act itself is applicable to the SEBI (Stockbrokers and Sub-Brokers) Regulations, 1992. Section 3 of the General Clauses Act, 1897 states that the said Act is applicable to all Central Acts and Regulations made after the commencement of this Act. Further, the term "Central Act" has been defined under sub-section (7) as an Act of Parliament, which includes (a) an Act o....
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....gy Act 2000, Parliament envisioned a regime of electronic governance. The legislation recognizes that information technology is a facilitative instrument for creating an efficient framework for e-commerce. Providing the backdrop for Parliamentary intervention, the Statement of Objects and Reasons underlying the enactment of the legislation provides the rationale for the law: "New communication systems and digital technology have made dramatic changes in the way we live. A revolution is occurring in the way people transact business. Businesses and consumers are increasingly using computers to create, transmit and store information in the electronic form instead of traditional paper documents. Information stored in electronic form has many advantages. It is cheaper, easier to store, retrieve and speedier to communicate. Although people are aware of these advantages, they are reluctant to conduct business or conclude any transaction in the electronic form due to lack of appropriate legal framework. The two principal hurdles which stand in the way of facilitating electronic commerce and electronic government are the requirements as to writing and signature for legal recognition. At p....
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..... Among its salient provisions are those providing for: (i) Legal recognition of electronic records (Section 4); (ii) Legal recognition of electronic signatures (Section 5); (iii) Use of electronic records and electronic signatures in government and its agencies (Section 6); (iv) Authorization by government to service providers to set-up, maintain and upgrade computerized facilities (Section 6A); and (v) Retention of electronic records (Section 7). Sub-section 1 of Section 6 has a bearing on the issues raised in this case: "6. Use of electronic records and electronic signatures in Government and its agencies- (1) Where any law provides for - (a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant....
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.... records and any addition or deletion of a record from such repository shall be electronically signed by the person who is authorized to make such changes along with the time stamps of original creation and modification times" Digital signatures have contextual information including the date and time built into them. Under the Digital Signature (End entity) Rules 2015, provisions for time stamps for digital signatures are built into the legal regime under Rule 4(4) and, in the context of a long term valid digital signature, in Rule 4(7). Section 13 of the Information Technology Act 2000 contains provisions for the time and place of the dispatch and receipt of electronic records. It reads as follows: "13. Time and place of dispatch and receipt of electronic record.- (1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:- (a) if the addressee has designated a computer resource for th....
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....c Service Delivery) Rules 2011. L Effect of notifications issued in e-gazettes 51 Section 8 of the Information Technology Act, 2000 creates a legal basis for the publication of laws through e-gazettes. It reads as follows: "Section 8 - Publication of rule, regulation, etc., in Electronic Gazette- Where any law provides that any rule, regulation, order, byelaw, notification or any other matter shall be published in the Official Gazette, then, such requirement 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, by-law, 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." 52 On 30 September 2015, the Ministry of Urban Development issued an Office Memorandum numbered No. O-17022/1/2015-PSP-l which discontinued the practice of physical printing and replaced it with the electronic gazette. The notification, in relevant part, reads as follows: "In compliance ....
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.... notified, seen in juxtaposition with Section 8 of the IT Act, and of the OM dated 30th September, 2015 supra, of the Ministry of Urban Development, makes it clear that the impugned Notification Nos. 24 and 25, dated 25th August, 2017 were, in fact, electronically published in the Official Gazette only at or after 10:47 p.m. on 28th August, 2017. 33. It has been conclusively held, by the Supreme Court, in a catena of decisions - including Harla v. State of Rajasthan [1952 (1) SCR 110], B.K. Srinivasan v. State of Karnataka [AIR 1987 SC 1059] and U.O.I, v. Param Industries [(2016) 16 SCC 692] that, notifications would come into force on their publication in the Official Gazette, i.e. in the present case, with effect from the date and time when they were electronically printed in the Gazette, which was at or after 10:47 p.m. on 28th August, 2017." (emphasis supplied) 56 Thus, the High Court regarded the time of publication as the relevant marker for determining the enforceability of the notifications. The issue of determining the starting point for the enforceability of a notification in the electronic gazette was considered by the Andhra Pradesh High Court in Ruchi Soya Indu....
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....akin to the exercise of delegated legislative power, under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019. 59 The impugned High Court judgement has relied on the decision of the Karnataka High Court in Param Industries Ltd. vs. Union of India 2002 (150) E.L.T. 3 (Kar), which was confirmed by the decision of this Court in Union of India vs. Param Industries Limited (2016) 16 SCC 692 ["Param Industries"] In that case, the respondents were in the business of importing and exporting edible oil. The respondents imported RBD Palmolein which was cleared after payment of import duty of 85 per cent of its value. The import duty was paid pursuant to a notification which was in existence as on that date. A major quantity of the goods had been removed from the....
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....ification was published in the Official Gazette on the 13-2- 1986. As to the effect of the publication in the Official Gazette, this Court held [Srinivasan case[(1987) 1 SCC 658, 672 : AIR 1987 SC 1059, 1067] AIR at p. 1067 : SCC pp. 672-73, para 15]: "Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognized official channel, namely, the Official Gazette or some other reasonable mode of publication." 18. We, therefore, see no substance in the contention that notwithstanding the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability." (emphasis supplied) The principles recognized in Pankaj Jain were re-iterated and affirmed by a three judge Bench of this Court in Union of India vs. Ganesh D....
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....cation followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement." (emphasis supplied) 61 Param Industries, in as much as it imposed an additional requirement of 'offering for sale', outside of the prescribed statutory scheme under S.14(2) of the Customs Act, 1962, appears to be contrary to pre-existing principles. Having said this, we do not wish to rule on the validity of Param Industries or its consequent impact on decisions that have relied on it. In the present judgment it is not necessary to take recourse to the line of reasoning in Param Industries. The situation at hand, operates on a landscape which is significantly altered by the regulatory regime in the electronic age where, both - uploading of notifications in the e-gazette and filing of bills of entry- are in the electronic form. As we have previously noted, Notification 5/2019 was uploaded in the e-gazette at a specific time and date and cannot apply to bills of entry which were presented on the customs automated EDI system prior to it, attracting the legal fiction set out in Regulation 4(2) of the 2018 Regu....
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.... submissions. The legal position which needs emphasis is that the entrustment of the power to issue a notification enhancing the rate of duty under Section 8A is not accompanied by a statutory entrustment of authority to the Central government to exercise it with retrospective effect. An enhancement of the rate of duty pursuant to the exercise of power under Section 8A can only be prospective. 64 Parliament and the state legislatures are entrusted with the power to enact legislation under Articles 245 and 246 of the Constitution. Parliament and the state legislatures possess the plenary power to enact legislation, with prospective and retrospective effect, subject to due observance of constitutional requirements. A notification issued by the government pursuant to the conferment of statutory power is distinct from an act of the legislature. Administrative notifications, even when they are issued in pursuance of an enabling statutory framework, are subject to the statute. Delegated legislation does not lose its character even when it has the same force and effect as if it is contained in the statute. This is a settled position of law. In a decision which was rendered in 1961 by a C....
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....fect. These requirements, qualitatively distinguished from a requirement of mere 'laying' under Section 45 of the Banking Regulation Act 1949, were pivotal in the court's view that a scheme under the 1980 Act has a legislative character. Mr Natraj sought to emphasize a similar argument, by placing reliance on the provisions of sub-sections (3) and (4) of Section 7 which are made applicable by reason of sub-section (2) of section 8A. However, in the absence of a sine qua non for parliamentary sanction before the notification is enforceable, the decision of New Bank of India provides little anchor. For the purpose of the present decision the point which needs emphasis is that in empowering the Central Government to exercise power under Section 8A of the Customs Tariff Act, Parliament has not either expressly or by necessary implication indicated that a notification once issued will have force and effect anterior in time. The provisions of sub-sections (3) and (4) of Section 7 of the Customs Tariff Act bring to bear legislative oversight and supervision over the power which is entrusted to the Central Government under Section 8A. That however does not lead to the inference that a noti....
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....se, to the constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication. In the present case the power under Section 4(1) does not indicate either alternative......" The Court held that the fact that the rules had been framed in pursuance of a resolution passed by the legislature or that they have to be placed on the table of the legislative body would not lead to an inference that the legislature had authorized the framing of subordinate legislation with retrospective effect: "4...The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand v. Union of India [(1972) 2 SCC 601, 606 : (1973) 1 SCR 896, 902]." This precisely is the ....
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....bject is embodied in the dictum of Lord Dunedin in Whitney vs. Commissioners of Inland Revenue (1926) AC 37 at 52 which has been consistently applied in the decisions of this court. There is, first, the declaration of liability which determines "what persons in respect of what property are liable". The second is the stage of assessment. Liability, it is well settled, does not depend on assessment since exhypothesi, that has already been fixed. Assessment particularizes the exact sum which a person is liable to pay. Third (and the last) are the methods of recovery if a person who is taxed does not voluntarily pay. (See in this context the decisions of the Federal Court in Chatturam v. CIT, Bihar (1947) FCR 116 at 126 and of this Court in A V Fernandez vs. State of Kerala 1957 SCR 837 at para 39 and Deputy CTO vs. Sha Sukraj Peerajee (1967) 3 SCR 661 at para 5. 67 In the present case the twin conditions of Section 15 stood determined prior to the issuance of Notification 5/2019 on 16 February 2019 at 20:46:58 hours. The rate of duty was determined by the presentation of the bills of entry for home consumption in the electronic form under Section 46. Self-assessment was o....
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....ed from the Islamic Republic of Pakistan.- 200% -" . 3. It came to be published in the Gazette at 20:46:58 hrs. on 16.2.2019. 4. On the same day, i.e., on 16.02.2019, the respondents in the Appeals, who were the Writ Petitioners before the High Court, filed Bills of Entry under the Customs Act, 1962 in respect of goods imported from Pakistan. In fact, there was an agreement between India and Pakistan, both being SAARC Countries, under which, duty was to be levied on the imports from Pakistan at concessional rates, in those cases where imports were exigible to any duty at all. The goods which were subject matter of import, had also arrived in the Customs Station and as noticed, during the course of the working hours on 16.02.2019 and well before the time of the Notification hereinbefore adverted to, the Bills of Entry came to be presented. The duty came to be selfassessed by the respondents. It is, thereafter, that taking inspiration from the hefty increase in duty effected under the Notification the Writ Petitioners came to be faced with reassessment proceedings. It is accordingly that they approached the High Court and filed Writ Petitions wherein the prayer may be noticed....
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....would contend that the Notification issued under Section 8A of the Tariff Act following the extraordinary circumstances surrounding the Pulwama terror attack, the rate of duty came to be increased by Notification dated 16.02.2019. The Notification would have effect in respect of all the Bills of Entry which came to be filed/presented on that day. To buttress his submissions, he also sought to draw support from Section 5(3) of the General Clauses Act, 1897. He would point out that the Notification would, therefore, have effect from the expiry of the previous day. That is, it is his contention that though it is issued late in the evening on 16.02.2019, since the previous day, viz., 15.02.2019 expired at midnight, the Notification must be treated as born and alive from the first tick of time past the midnight of 15.02.2019. He also drew our attention to the Scheme of the Customs Act, 1962 otherwise. With the assistance of Sections 12, 15, 46 and 47, he sought to contend that the High Court fell into error in not recognizing that the preferring of the Bills of the Entry by the respondents, could not detract from the applicability of the increased rate of duty under the Notification. 9....
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....en passed under Section 47 of the Act permitting clearance of the goods for home consumption. As soon as the factum of the notification having bearing came to light, proceedings for re-assessment were resorted to and no case was made out for the High Court to interfere with the action of the authorities in purporting to apply the correct rate of duty within the meaning of Section 15 of the Act. 10. Per contra, Shri P.S. Narsimha, learned Senior Counsel for the respondent-Writ Petitioners, countered the appellants submissions by pointing out as follows: Under Section 12 of the Customs Act, imports attract customs duty as is fixed under the Tariff Act. Section 15 of the Customs Act, however, determines the date with reference to which the rate of duty as provided in the Tariff Act is to apply. Still further and crucially, this exercise is to be accomplished with reference to the date of presentation of the Bills of Entry as provided in Section 46 of the Customs Act. He would, in fact, submit that under the Customs Act, a perusal of Sections 15 and 16, would show that there are four different situations contemplated. Under Section 15, which deals with rate of duty payable on import....
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....ers, pointed out that after the Notification was issued late in the evening, the system did not accept further electronic declaration of Bills of Entry as it was contemplated that such Bills of Entry would attract the higher duty. 11. Mr. P.S. Narsimha, learned Senior Counsel, points out that Customs Act contemplates self-assessment. He drew our attention to Section 17 in this regard. It is the further case of the writ petitioners that based on the self-assessment, the system generated details which approved of the self-assessment. After the matter stood concluded in terms of the Act, the transaction could not be revisited on the strength of the Notification issued under Section 8A, runs the argument. It is pointed out that the Notification, issued under Section 8A, may be akin to delegated legislation. Even proceeding on the basis that it is delegated legislation, it can have only prospective operation. Section 8A of the Tariff Act, under which the Notification was issued, did not empower the author of the Notification to issue the Notification with retrospective effect. In answer to a query by the Court as to what would have been the effect of the notification which was issued a....
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....in the evening as a bolt from the blue, as it were, the notification came to be issued under Section 8A of the Tariff Act. The questions which arise for the consideration of this Court is articulated as follows: 1. What is the nature of the Notification? Is it a species of subordinate legislation? 2. If it is subordinate legislation, when did it commence? What is the scheme of the Customs Act as regards the rate of duty on imports and the power of assessment? Was the Notification in force on 16.02.2019 so that it would cover all the transactions countenanced by the Bills of Entry which were duly presented during the office hours on 16.02.2019? What constitutes a day under Section 15 of the Customs Act? 3. Whether the Notification is covered by Section 5(3) of the General Clauses Act? 4. Whether the appellants were justified in resorting to re-assessment in these cases? THE TARIFF ACT AND WHETHER THE NOTIFICATION IS A FORM OF DELEGATED LEGISLATION 14. It is apposite that the working of the Tariff Act is unravelled. The rates of duty under the Customs Act are to be provided as per the entries in the First and Second Schedule. Section 2 of the Tariff Act, reads as follows: ....
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.... 11A. The words "circumstances" exists which render it necessary to take immediate action in Section 8A makes it clear that the power to increase the rate of import duty is ordinarily a power to be exercised by the Parliament by a process of amending the First Schedule to the Tariff Act. It is only in emergent circumstances where the delegate of the Legislature, viz. the Central Government, considers it necessary to take immediate action that is the process of amending the Act or rather the Schedule to the Act by the Parliament, would take time, the same is sought to be obviated by taking action under Section 8A. Undoubtedly, the provisions of Sections 7(3) and 7(4) will apply in making of the Notification. 16. On a perusal of the provisions, as noted, it is clear that a Notification issued under Section 8A, increasing the import duty, is a species of delegated legislation. It must be remembered that Article 265 of the Constitution of India declares that no tax shall be levied except by the authority of Law. An increase in the rate of duty cannot obviously be affected by an Executive Order. That is not to say that when the Executive is empowered to increase the rate of duty by way....
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....ile the Bill of Entry for home consumption. Section 46(1) also contemplates the presentation of the Bill of Entry for the goods being warehoused. This ordinarily would occur when the importer may have difficulty in paying the duty on the goods. He may also warehouse the goods when he has not yet found a buyer for his goods or there are any other obstacles in clearing the goods. Cases of goods imported for the purpose of being taken out of the country by way of transshipment or goods intended for transit, are not covered by Section 46 (1). The Bill of Entry under sub-Section (1) is to be presented before the expiry of the day following the day (excluding holidays) on which the aircraft, vessel or vehicle carrying the goods arrives at a Customs Station, at which the goods are to be cleared, either for home consumption or warehousing [See Section 46(3)]. The Second Proviso to Section 46(3) provides that if the Bill of Entry is not presented within the time specified and there are no sufficient reasons for such delay, the importer is to pay charges for late presentation. The importer is also to make a declaration regarding the truth of the contents of the Bill of Entry, and in support ....
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....cer to pass an Order of provisional assessment. In such a case, it is open to the Officer to carry out the final assessment. So also, it is open to the Officer to carry out re-assessment. 22. What is the time at which the importer who presents a Bill of Entry under Section 46 for home consumption is to effect payment of the import duty, when he carries out self-assessment? This question is answered in Section 47(2)(a) which provides that the importer is to pay the import duty on the very day of presentation of the Bill of Entry when the importer carries out self-assessment as is contemplated under Section 17(1) of the Act. 23. Section 47(1) contemplates that where the Officer is satisfied about the goods entered for home consumption, being not prohibited goods, and the importer has paid the import duty, if any, assessed thereon, and other charges, under the Act, he is to pass an Order permitting clearing of goods for home consumption. It is again to be noted that under Section 47(2)(b), the importer is to pay the duty within one day from the date on which the Bill of Entry is returned to him when there is assessment, re-assessment or provisional assessment. Section 47(1)(c) also ....
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.... customs automated system", have been inserted by the Finance Act, 2018 w.e.f. 01.04.2018. The words "in such form and manner, as may be prescribed" came to substitute the words "in the prescribed form", by the Finance Act, 2018. No doubt, the First Proviso to Section 46(1) empowers the Principal Commissioner of Customs or the Commissioner of Customs to allow the Bill of Entry to be presented in any other manner, where it is not feasible to make the entry electronically. 27. The Regulations holding the field providing for the form and manner in which the Bill of Entry is to be presented for home consumption under Section 46(1) of the Customs Act are called the Bill of Entry (Electronic Integrated Declaration and paperless Processing) Regulations, 2018 (hereinafter referred to as 'the 2018 Regulations", for short). Regulation 4(2), which is the relevant Regulation, reads as follows: "4(2) The bill of entry shall be deemed to have been filed and self-assessment completed when after entry of the electronic integrated declaration on the customs automated system or by way of data entry through the service centre, a bill of entry number is generated by the Indian Customs Electronic Da....
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.... regard to goods which are imported into India and which have been entered under a Bill of India for home consumption, the time is now ripe for ascertaining the impact of the Notification which came to be issued late in the evening on 16.02.2019. The nature of the Notification, which is admittedly issued under Section 8A of the Tariff Act, has been explained earlier. It is a species of delegated legislation. As far as law made by Parliament or the State Legislatures, which are sovereign bodies in their own right, subject, no doubt, to their position, under the Constitution, as expounded by this Court, the law comes into force immediately after the assent is given by the President or the Governor, respectively. A law made by Parliament has effect without any further act on the part of the Executive. This is, no doubt, subject to the intention expressed otherwise in the law so made as to any other date from which it is to have operation. It may also be a case of a conditional legislation where the law is to be brought into force by the Executive. 31. No doubt, there is a distinction between conditional legislation and delegated legislation (See in this regard, judgment of this....
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....ette or from the date it was made available to the public. This Court, elaborately referred to the judgment of the Madras High Court in Asia Tobacco Company Limited v. Union of India and others (1985)155 ITR 568 (Mad). Therein, the High Court, inter alia, held as follows: "8. ...... "The mere printing of the official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the notification within the meaning of r. 8(1) of the Rules. ........................... It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public ...... Neither the date of the notification nor the date of printing, nor the date of Gazette counts for notification within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printi....
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....efore the date on which the said notification comes into force." The view in New Tobacco Company (supra) was held to be not good law. 37. It is to be noticed that it is in regard to a Notification issued under Section 25 of the Customs Act that the principles contained in sub-Section (4) and (5) will have effect from the date on which these provisions were brought into force. As far a Notification issued under Section 8A, with which this Court is concerned, it is the principle which has been laid down in Ganesh Das Bhojraj(supra), which will apply. 38. In other words, as far as the Notification issued under Section 8A of the Tariff Act is concerned, the Notification would come into force on the date on which it is published in the Gazette. The question, however, which arises in this case is, as far as this Court is concerned, res integra, viz., whether having regard to the time at which it was published, whether Notification would come into force on 16.02.2019, by including the whole of the day or will it operate from the time of its publication, or whether the Notification is to be enforced only after excluding 16.02.2019. 39. The question would pointedly arise whether it was....
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....s not for any period. In other words, it is not a case where the terminus ad quem or a period of time, is fixed for the operation of the increased import duty of goods imported from Pakistan. In other words, the increased rate of import duty under the Notification is to last indefinitely. The word "indefinite" is intended to mean that it is to bear life till it is increased, reduced or completely done away with, in exercise of powers available under the Customs Act or the Customs Tariff Act (See in this regard Section 25 of the Customs Act and Section 2 of the Tariff Act). A DAY; A PERIOD OF TIME; FRACTION OF TIME 44. It now becomes necessary to refer to principles enunciated by Courts in diverse situations under different branches of law. 45. I would begin by referring to an off-quoted Judgment rendered by the Master of the Rolls, Sir William Grant in the decision reported in Lester v. Garland [1808] 15 Ves. 248. In the said case, there was a bequest of residual interest in favour of 'A' if she gave security not to marry 'B', inter alia, within six calendar months, after the death of the Testator. There was a proviso to go over if 'A' refused to give such security. The Testator ....
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.... the whole of the 12th is to be computed as one of the days subsequent to his death. There seems to be no alternative but either to take, the actual instant, or the entire day, as the time of his death; and not to begin the computation from the preceding day. But it is not necessary to lay down any general rule. Whichever way it should be laid down, cases would occur, the reason of which would require exceptions to be made. Here the reason of the thing requires the exclusion of the day from the period of six months, given to Mrs . Pointe r to deliberate upon the choice she would make; and upon the whole my opinion is, that she has entered into the security before the expiration of the six months; in sufficient time therefore to fulfil the condition, on which her children were to take." (Emphasis supplied) 46. In Re. Railways Sleepers Supply Co. (1885) 29 Ch.d. 204, an Extraordinary General Meeting of the company passed a Special Resolution on 25.02.1885, for the reduction of the capital of the company. On 11.03.1885, the Resolution passed on the 25.02.1885, was confirmed. On a petition filed, seeking sanction of the Court for the proposed reduction of capital, the question ....
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.... have said. ...." 48. In 1895, a case, viz., In Re. North (1895) 2 Q.B. 264 arose under the Bankruptcy Act, 1890. The question was whether an act of bankruptcy had been committed by reason of the fact that on an action taken by an execution creditor, and after the seizure of goods of the debtor and subsequent private sale, as permitted by the Court, the Sheriff had held the goods for a period of twenty-one days. Lord Esher M.R., after referring to Lester v. Garland (supra), holds as follows: " ...., after a learned examination of the whole subject, laid down what I conceive to be the wholesome view that no general rule exists. ...." "... The statute which we have to construe for the purpose of deciding how the period of time mentioned in it is to be computed is a Bankruptcy Act, and enacts a new act of bankruptcy, the commission of which is to be determined by a computation of time. ...." "... If we construe s. 1 of the Act of 1890 according to the ordinary English meaning of the words, it enacts that certain consequences are to happen if the sheriff holds for twenty-one days goods seized by him under an execution: an act of bankruptcy is committed if he holds them ....
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....ws, inter alia: "... It was contended before us, and it seems at one time to have been thought to be law, that where a fact or event was mentioned from which a given period of time was to be reckoned, the Court was bound to reckon the portion of the day on which the act was done as though it were a whole day, and to reckon it as the first day of the period. That doctrine underwent a thorough examination in Lester v. Garland, at the hands of Sir W. Grant, who considered the cases in which the first day had been included or excluded, and came to the conclusion (which I think was inevitable) that there was no general rule on the subject. ..." "... His classification of the cases shews that where the calculation is in favour of a person, the construction should be adopted which is more favourable to him. In the case of a sheriff, for instance, it is more in his favour to include the day on which the act is done than to exclude it, and on that ground it is included; but where, to take another example, something has to be done which is necessary to complete a title, the first day is excluded, otherwise there would be a cutting down of the time allowed for doing the act. In my opinio....
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....se on neither view does it make any difference. If the Gazette had been published early in the morning, according to the view of Kumaraswami Sastri, J., the tax will come into operation only the next day. If it had been published late in the night, according to the view of Coutts-Trotter, J., the tax would still be operative from the time the office opened for the receipt of plaints on that day. I agree that we have nothing to do with the English Common Law except in so far as it may afford some guide as to the proper meaning to be attached to words in the English language. ... . 3. ... Applying the general rules stated above to this case, the named date must be included unless there is some valid reason why it should not be, and I can find none. It is true that it may have the effect of making persons pay more than they understood they had to pay when they filed their suits; but this seems to me a ground for criticising the method of imposing this tax rather than a ground for interpreting the notice in any particular way; and I think that this argument is more than counterbalanced by the fact that this was a sudden imposition of a tax which in many cases could be avoided if not....
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....he suits which they filed are not in their opinion worth the expenditure entailed by the increased rate of institution fees, they would doubtless be permitted to ? withdraw them-a suit evaluated at that rate by the person who institutes it, is not likely to be based on a very solid cause of action. ...." (Emphasis supplied) 53. However, C.V. Kumaraswami Sastri, J., dissented. The learned Judge also referred to Lester v. Garland (supra) and In Re. North (supra) and held as follows: "21. Applying the law as laid down in the previous cases to the facts of the present case, we have to see whether the 5th of May, 1922, is to be included or excluded. I might, in this connection, state that I do not think that the principles which govern, or the devices which are resorted to, by the Executive for the purpose of raising money by taxation ought to have any weight with us in determining whether the date of publication is to be included or excluded. I do not think the High Court is part of the tax gathering machinery of the Government or has any concern with the consequences to the Government of their decision on the construction of the rule. The rule, I take it, was passed by the J....
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....sive or exclusive of the date of notification and that each case must depend upon its own circumstances subject-matter, justice and equity demand that the date of the notification ought to be excluded. I would, therefore direct that all the plaints received on the 5th of May, 1922, be stamped with Rs. 30." (Emphasis supplied) THE POSITION UNDER THE LAW RELATING TO PREVENTIVE DETENTION 54. A Division Bench of High Court of Delhi had occasion to consider the question again of time of operation in the following circumstances in the decision reported in Jasbir Singh vs. Union of India (1995) ILR 2 Delhi 399. The contentions urged by the detenu included the contention that the detention orders stood vitiated as in contravention of Section 3(3) of the COFEPOSA Act, the grounds of detention was served on the 6th day of the day of Order of detention being served. Section 3(3), inter alia, provides for communication to a person of the grounds of detention as soon as may be after detention but ordinarily not later than five days and in an exceptional case and for reasons to be recorded in writing not later than 15 days from the date of detention. The Division Bench, which included Chi....
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....ional Insurance Company Limited vs. Geeta Devi and Others. 2010(15) SCC 670, I may refer to paragraphs 3 and 4 which adverts to the decisions of this Court distinguishing Ram Dayal (supra). Finally, this Court took the view, there is a cover note mentioning the time as 04:40 p.m. and it was issued after the accident and therefore, the insurer was not liable: "3. The question again came up for consideration in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi; (1997) 1 SCC 66. Reliance was placed on the abovementioned judgments. However, a three-Judge Bench of this Court noted that the Tribunal had recorded, as a fact, that the policy had come into force at 4:00 P.M. whereas the accident had taken place at 11:40 a.m. This Court held that in view of the special contract and in view of the fact that the accident had occurred earlier, the insurance coverage would not enable the claimant to seek recovery from the Insurance Company. 4. The question again arose in Oriental Insurance Co. Ltd. v. Sunita Rathi; (1998) 1 SCC 365, was relied upon. This court distinguished Ram Dayal case; (1990) 2 SCC 680, was relied upon. This Court distinguished effective date and time of the policy ....
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....tification which is issued is one which is issued under Section 8A of the Tariff Act. The notification is not one which is made by Central Legislature, namely, the Parliament. It therefore is not a Central Law as defined in the Act. We have also noticed the definition of the word 'Regulation'. The notification is not a regulation as defined in General Clauses Act. There is no merit in the contention of the Union of India that by virtue of Section of 5(3) of the General Clauses Act, the notification must be treated as effective from the point of time immediately after mid night on 15/16 February, 2019. THREE POSSBILE VIEWS 62. There are three possible answers to the questions as to what is to be the meaning of the word 'day', in the context of the provisions of Section 15 the Customs Act and the Notification. 1.The first way to look at "the day", would be to take it as a fraction of day, viz., 16.02.2019, having its beginning at 20:46:58 hrs. and ending with the midnight on 16.02.2019. 2.The second way to look at it is, it would operate only after the midnight of 16.02.2019, and would impact Bills of Entries presented on 17.02.2019 onwards. In other words, it would be an int....
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....in Section 12 and Section 15 of the Customs Act which fixes the date according to the rate of duty as the date of presentation of the bill of entries, could it certainly not be said that the law would abhor the reopening of transactions which have culminated in proceedings which are otherwise impeccably correct and regular. By way of re-assessment can matters concluded in the eye of law be revisited on the basis of a notification which comes much later in the day? There is yet another aspect which must also be borne in mind. The question before us, arises on the basis of notification which is, indeed, a form of delegated legislation which is issued under Section 8A of the Tariff Act. Section 8A of the Tariff Act empowers the Central Government to increase the rate of import duty but the power to issue a notification under Section 8A, is not conferred to increase the rate of import duty with retrospective effect. 67. We may at once notice the counter argument. By ensuring full play for the notification for the whole of the day on which it was issued, the provisions of Section 15 of the Customs Act in the view of Additional Solicitor General, are duly honoured. It is his argument th....
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....ment of Mr. P.S. Narsimha, learned Senior Counsel, is accepted, then, it would have operation from the time at which the Notification is issued. This is because in answer to a query as to what would be the position if the Notification had been issued at 10.00 a.m. on 16.02.2019 and the Bills of Entry were presented after 10.00 a.m., his response was, the importers would have to pay the higher rate of duty under the Notification. Therefore, his argument appears to be that a Notification must come into operation with reference to the point of time of the day when the Notification was issued. 71. The principle that fractions of the day are eschewed from consideration, is not a universal principle which knows no exceptions. 72. Section 48 of the Transfer of Property Act, 1882, reads as follows: "48. Priority of rights created by transfer.-Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously cre....
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....the executive under Section 8A. It is on this basis that the law made by the legislature is taken as known to the public and mere assent of the President would suffice and the need to make any delegated legislation known by publication before it becomes effective is insisted upon. Publication in the case of delegated legislation is based on a rationale. On this rationale even the principle embedded in Section 5 in regard to the law made by the legislature cannot be applied to a notification issued under Section 8A of the Tariff Act. 76. The view taken by Justice Kumaraswami Sastri, in Re: Court Fees (supra), in the context of the increase in the Court Fee, effected under a Notification, which came to the High Court only at about 05.00 p.m., which was around the time when Court closed down, was to exclude the operation of the increased Court Fee qua the suits which were filed during the course of the day. 77. At the time, when the Madras High Court considered the question, it may be noticed that the Constitution of India was not in force. The matter has not been approached on an analysis as to the nature of subordinate legislation and the point of time when a subordinate legislati....
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....t accords respect for vested rights. TWO INCONSISTENT RATES AT THE SAME POINT OF TIME 79. There is no merit in the submission of the appellants in this regard. Once it is found that the notification upon publication would take effect from the time of its publication then in regard to the bills of entries which stand presented within the meaning of Section 46 of the Customs Act read with 4(2) of the 2018 Regulations, earlier to such publication, the rate of duty in regard to the same would be only the rate of duty which prevailed at the time of the deemed presentation under Regulation 4(2) of the 2018 Regulations. EFFECT OF THE WORD "OTHERWISE" IN SECTION 17(4) OF THE CUSTOMS ACT, 1962 80. The expression "otherwise" in Section 17(4), will not come to the rescue of the appellants, in the facts of the instant case. While the word "otherwise" may be capable of taking care of situations which are not covered by the preceding expressions, viz., verification, examination, attesting of the goods, it cannot mean that it will empower the Officer to alter the rate of duty which is prevalent at the time of the self-assessment following the due presentation of the Bill of Entry. If it is ....
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....harge the cargo was found irrelevant for purposes of Section 15(1) read with Sections 46 and 31 of the Customs Act. This decision also does not assist the Court in deciding the question which squarely falls for decision. The decision of this Court in D.C.M.Ltd. and Another V. Union of India 1995 suppl. (3)SCC 223 involved a challenge to the validity of Section 15(1)(b) of the Customs Act. Following the filing of "Bill of Entry for warehousing" on 24.2.1982, the imported goods were warehoused. The goods were cleared from the warehouse on 3.3.1982 and 15.4.1982. On the basis of Section 15(1)(b) taking note of the dates of clearance from the warehouse, the duty was levied. The Court noted that Section 12, the charging section was subject to Section 15 among other sections. An option was given to the importer to either file a Bill of entry for home consumption straight away in which case he has to pay the duty based on the filing of the bill of entry. In the case of bill of entry for warehousing, the date of clearance of the goods determined the rate under section 15(1)(b) as it stood. It does not have any effect qua the facts of the case before this Court except that what determ....
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....en absolutely but, as its derivation plainly indicates, time given or specified time in some way ascertained and fixed; this is the sense in which the word is commonly used. When we speak of the date of a deed, we do not mean the time when it was actually executed but the time of its execution, as given or stated in the deed itself.' 'Where a deed bears no date, or an impossible date, and in the deed reference is made to the "date", that word must be construed "delivery"; but if the deed bears a sensible date, the word "date", occurring in the deed, means the day of the date, and not that of the delivery' (Elph. 123, citing Styles v. Wardle [(1825) 4 B & C 908 : 107 ER 1297] ; ...). 'Date', though sometimes used as the shortened form of 'day of the date', is not its synonym; but means the particular time on which an instrument is given, executed, or delivered (Howard case [2 Salkeld 625: 91 ER 528: 1 Ld Raym 480: 91 ER 1219] ; Armitt v. Breame [(1704) 2 Ld Raym 1076: 92 ER 213] and Pewtress v. Annan [(1841) 9 Dowl 828] , Dowl at pp. 834-35). ... 'The word "date" is much more commonly descriptive of a day than of any smaller division of time' (per Stormonth Darling, L.O., S....
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....ixed for scrutiny' It is interpreting the said words in Section 36 (2) (a) that the Court held as follows: "13. It seems to us that the expression "on the date fixed for scrutiny" in Section 36(2)(a) means "on the whole of the day on which the scrutiny of nomination has to take place". In other words, the qualification must exist from the earliest moment of the day of scrutiny. It will be noticed that on this date the Returning Officer has to decide the objections and the objections have to be made by the other candidates after examining the nomination papers and in the light of Section 36(2) of the Act and other provisions. On the date of the scrutiny the other candidates should be in a position to raise all possible objections before the scrutiny of a particular nomination paper starts. In a particular case, an objection may be taken to the form of the oath; the form of the oath may have been modified or the oath may not have been sworn before the person authorised in this behalf by the Election Commission. It is not necessary under Article 173 that the person authorised by the Election Commission should be the Returning Officer. 14. In Paynter v. James [(1866-67) LR 2 CP 34....