TaxTMI 
TaxTMI 
2020 (9) TMI 903
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....o 3262 of 2020 (Arising out of SLP (C) No.5029 of 2020) Civil 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....
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.... bills of entry and completed the process of "selfassessment" before the notification enhancing the rate 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 consignm....
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....to 8,10,952/-. 7 Aggrieved by the action of the customs authorities, the first respondent filed a petition under Article 226 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; ....
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....latform before the issuance of the notification and they were self-assessed. 10 On the other hand, the contention of the Union government before the High Court was that under Section 15 of 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) Th....
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....or determination of the rate of duty (as applicable), which this court must uphold. B (i) Independent of (A) above, a notification under Section 8A(1) of the Customs Tariff Act has the effect of amending the First schedule and is a legislative act which dates back to the commencement 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"  ....
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....statute under which it has been framed, expressly or by necessary implication, imports retrospectivity. Subordinate legislation cannot always be equated as an 'Act of legislature' for the interpretation of 'Central Act' as defined by the General Clauses Act. C (i) Digital India is a new vision and idea into which India is evolving, and we are in a phase of governance in which multiple commercial transactions take 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 an....
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....aluation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which a bill of entry for home consumption in respect of such goods is presented under that section]; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill 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....
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....e by which the goods have been shipped for importation into India. Dealing with such a situation, the proviso to Section 15(1) states that if a bill of entry has been presented prior to the date of the entry inwards of the vessel or the arrival of the aircraft or vehicle by which the goods are imported, the bill of entry is deemed to have been presented on the date of the entry inwards or the arrival of the goods. Hence even where the bill of entry has been presented before the date of the entry inwards or the arrival of the aircraft or 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 airc....
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....pecified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed. (4) The importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, [and such other documents relating to the imported goods as may be prescribed]. (4A) The importer who presents a bill 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 a....
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.... correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods....." (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Explanation.-For the removal 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 require....
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....the bill of entry or the shipping bill, as the case may be." The amendment of 2011 has made significant legislative changes in the procedure and modalities for assessment of duty under Section 17. Under subsection 1 of Section 17, the importer entering imported goods under Section 46, has to 'self-assess' duty (except as otherwise envisaged in the provisions of Section 85). Under sub-section (2), the proper officer may verify the entries made under Section 46 and the self-assessment made under sub-section (1) and may examine or test the goods. The selection of goods for verification has to be primarily on the basis of risk evaluation through appropriate selection criteria. Under sub-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....
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....c form on the customs automated system. The bill of entry under sub-section (1) has to be presented not later than the day following the arrival of the goods though it can be presented before the arrival of goods, at a time not exceeding thirty days prior to their expected arrival. In tandem with the provisions of Section 46, Section 17 provides for the self-assessment of duty by the importer. Section 46(1) stipulates that the bill of entry has to be presented in the form and in the manner 'prescribed'. The expression 'prescribed' is defined in Section 2(32) to mean prescribed by regulations made under the Act. The Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018 have been made in pursuance of the enabling 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" mean....
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....lectronically transmitted to the authorised person or printed out at the service centre. (3) Where the bill of entry is not filed within the time specified in sub-regulation (1) and the proper officer of Customs is satisfied that there was no sufficient cause for such delay, the importer shall be liable to pay charges for late presentation of the bill of entry at the rate of ......" (emphasis supplied) 22 The Regulations of 2018 have made provisions for submission of a declaration and generation of the bill of entry in an electronic form on the automated platform provided by the Central Board of Indirect Taxes and Customs. Sub-regulation (2) of Regulation 4 embodies a legal fiction. Regulation 4(2) stipulates that the bill of entry is deemed to have been filed and selfassessment 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....
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....nce a notification was issued on 16 February 2019 enhancing the rate of duty, that is the duty 'in force' on the date of presentation. Section 15(1)(a) uses two expressions (i) the rate and valuation "in force"; and (ii) "on the date" of the presentation of the bill of entry for home consumption under Section 46. The provisions of Section 15(1)(a) have to be read in conjunction with the provisions of Section 46 which are referred to in the former provision. Section 46 has incorporated a regime which encompasses the submission of the bill of entry for home consumption or warehousing in an electronic format, on the customs automated system in the manner which is prescribed. The Regulations of 2018 stipulate the manner in which the bill of entry has to be presented. The deeming fiction in Regulation 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 ....
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....r of goods may himself be responsible, in some cases the responsibility may lie on the customs authorities and there may also be contingencies beyond the control of both the parties. In any case the intention of the legislature being clear, rate of duty is to be applied, as may be in force on the date of actual removal of goods from the warehouse under Section 15(1)(b) of the Customs Act." The above observations, referring to the date of the actual removal of goods from the warehouse, were made in the context of the provisions of Section 15(1)(b). In a subsequent decision in Dhiraj Lal H Vohra vs. Union of India 1993 Supp (3) SCC 453, Justice K Ramaswamy speaking for a three judge Bench observed: "3. It is clear from a bare reading of these relevant provisions that the due date to calculate the rate of duty applicable 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 ....
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....rom the warehouse for which purpose the importer has to file a fresh bill of entry for home consumption. In other words, it is the date of filing the bill of entry for home consumption which determines the rate of duty in clauses (a) and (b) of Section 15. Inasmuch as the matter is left to the option of the importer and also because a uniform principle is adopted by the Act, as explained above, we see no room for any legitimate grievance of discrimination. There is also no presumption that rate of duty always goes up. It may also go down, in which case, the importer stands to gain." 26 The presentation of a bill of entry for home consumption under Section 46 is hence the definitive event with reference to which the customs' duty payable for import is determined. The duty in force on the day when the bill of entry for home consumption is 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....
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....9 and the time as 4:40 pm " it necessarily means that the effective date of issue and time of issue is as mentioned on the cover note." Since the cover note mentioned both the date and time, the Court held that the principle that the insurance cover would date back to midnight of the preceding day would not cover the factual situation. 30 In Ahmadsahab Abdul Mulla (2) Dead by proposed Lrs. vs. Bibijan (2009) 5 SCC 462, the issue before this Court was whether the expression "date" in Article 54 of the Schedule to the Limitation Act (which prescribes the period of limitation for a suit for specific performance) is suggestive of a specific date in the calendar. The court observed: "11. The inevitable conclusion is that the expression "date fixed for the performance" is a crystallised notion. This is clear from the fact that the second part "time from which period 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....
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.... the Original side of the High Court would apply the new scale to suits which had already been instituted on that day. Chief Justice Schwabe, on behalf of the majority, held "that the hour of the day at which the Gazette was actually published is a wholly irrelevant consideration". The Chief Justice noted that the use of the expression 'from' may have one of two meanings namely on and after, that is including the named date, or merely after, that is excluding the named date. The Chief Justice took the view that it is necessary to look at the context and the circumstances of each case to arrive at the true construction. Having said this, the Chief Justice outlined the principles in the following extract on page 688: "(1) that, if the named date is the beginning of a defined limited period, that, where there is a terminus ad quem as well as a terminus a quo, then prima facie the 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 w....
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....t is to be excluded altogether from the calculation. Consequently, "it does not help us to determine in any particular case whether the part is to be left out or kept in". Justice Kumaraswami Sastri observed that there is no invariable rule that the use of the expression 'from' includes the first day. Nor was there any basis in principle in the submission of the Crown that the exclusion of the first day where the word "from" is used is only to be in case where there are two termini. The learned Judge held that rules of equity and good conscience are by the Civil Courts Act to govern cases not governed by the Hindu and Mohammedan Laws. Voicing a powerful dissent, Justice Kumaraswami Sastri observed, on page 704: "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 ....
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.... that is prevalent on the date of the presentation of the bill of entry for home consumption. He submitted that two different rates of duty cannot be applicable on the same day. Hence, according to the submission, once a notification is issued under the Customs Tariff Act, it will be a notification in force on that date and apply with effect from the commencement of that date. 34 The decisions to which a reference has been made earlier, have construed the expression "day" or, as the case may be, "date" in varying contexts ranging from the law governing elections, insurance and limitation. A general position in law has not been laid down that is divorced from subject, context and statute. In interpreting the statute, the court is guided by the terms of its provisions, the purpose underlying their adoption and the scheme which emerges from interrelated provisions and the nature of the provision. The court in the present 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 b....
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.... ease of application and efficiency of administration. 36 It is with these principles of interpretation in mind that we must evaluate the submission which was urged by Mr Nataraj, on behalf of the Union, that upon the issuance of a notification enhancing the rate of duty under Section 8A of the Customs Tariff Act, the date on which the notification was issued will govern the rate applicable to all bills of entry, including those which were presented before the enhanced rate was notified. The submission cannot be accepted for several reasons. For one thing, it misses the significance of the expression "in force' which has been employed in the prefatory part of Section 15(1). A notification under Section 8A(1) of the Customs Tariff Act, even though it has the effect of amending the First Schedule, takes effect prospectively. Section 8A does not confer upon the notification an operation anterior to its making. In the language 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 no....
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.... is a legislative act. The rates of duty applicable to different categories of goods imported into India are set out in the First schedule to the Customs Tariff Act. A notification under Section 8A(1) amends the First schedule. Hence, the submission is that the schedule being a part of the Act, any amendment made to it by a notification is an amendment to the Act. The ASG relies upon the decisions of this Court in Video Electronics (P) Ltd vs. State of Punjab (1990) 3 SCC 87 and TN Electricity Board vs. Status Spinning Mills Limited (2008) 7 SCC 353 in support of the principle that subordinate legislation validly made in pursuance of a legislative provision is to be read as if it is a part of the enactment. Hence, for instance, an exemption granted under a notification made in pursuance of a statutory provision must be construed as if it is contained in the legislation. 38 In order to consider the submission, it 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 satisfie....
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....in seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (4) For the removal of doubts, it is hereby declared that any notification issued under sub-section (2), including any such notification approved or modified under sub-section (3), may be rescinded by the Central Government at any time by notification in the Official Gazette." (emphasis supplied) Under sub-section (3) of Section 7, the Central government is required to seek the approval of Parliament to 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 b....
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.... by the statute. The expression "Central Act" is defined in Section 3(7) in the following terms: "(7) "Central Act" shall means an Act of Parliament, and shall include- (a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and (b) an Act made before such commencement by the Governor General in Council or the Governor General, acting in a legislative capacity;" The expression "Regulation" is defined in Section 3(50) as follows: "(50) "Regulation" shall mean a Regulation made by the President under article 240 of the Constitution and shall include a Regulation made by the President under article 243 thereof and a Regulation made by the Central Government under the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935;" The expression "commencement" is defined in Section 3(13) as follows: "(13) "Commencement" used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force." The definition of the expression "commencement' is also relatable to a "Central Act" or "Regulat....
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.... is not possible nor permissible to give a meaning to any of the terms different from the definition. It is manifest that each term has a distinct and separate meaning attributed to it for the purpose of the Act. Therefore, when the question to be considered is whether a particular provision of the Act applies in a case then the clear and unambiguous language of that provision has to be given its true meaning and import. The Full Bench has equated a 'rule' with 'statute'. In our considered view this is impermissible in view of the specific provisions in the Act. When the Legislature by clear and unambiguous language has extended the provision of Section 6 to cases of repeal of a 'Central Act' or 'Regulation', it is not possible to apply the provision to a case of repeal of a 'Rule'. The position will not be different even if the rule has been framed by virtue of the power vested under an enactment; it remains a 'rule' and takes its colour from the definition of the term in the Act (General Clauses Act)." 45 In Securities and Exchange Board of India vs. Magnum Equity Services Ltd (2015) 16 SCC 721, a two judge Bench of this Court co....
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....ll be without prejudice to the validity of anything previously done under that rule or regulation." 13. Thus in light of the provisions of the SEBI Act, 1992 under which the said Regulations have been issued, the latter do not tantamount to a Central Act as defined Under Sub-section (7) of the definition clause of The General Clauses Act, 1897." The Regulations framed under the SEBI Act were held not to fall within the definition of a 'Central Act' contained in Section 3(7) of the General Clauses Act. 46 Notification 05/2019 was issued by the Central Government under the delegated authority to increase emergency tariff duties under Section 8A of the Customs Tariff Act, 1975. The notification has been issued in pursuance of a statutory power. The notification has the effect of enhancing the rate of duty prescribed in the First Schedule to the Customs Tariff Act. That does not, transform the notification which has been issued in pursuance of a statutory authority into a 'Central Act'. K Information Technology Act, 2000 47 While enacting the Information Technology Act 2000, Parliament envisioned a regime of electronic governance. The legislation recognizes that in....
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....ns' interaction with the governmental offices hassle free". Bearing the legislative number of Act 21 of 2000, the law came into force on 17 October 2000. The long title to the legislation provides that it is: "An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872 , the Banker's Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto." Section 2(t) defines the expression 'electronic record': "(t) ―electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche" Chapter III is devoted specifically to electronic governance. Among its salient provisions are those providing for: (i) Legal re....
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....ervice Delivery) Rules 2011, governmental authorities must maintain time stamps of the creation of electronic records. Rule 5(1) incorporates such a requirement in the following terms: "5. Creation of repository of electronically signed electronic records by Government Authorities.- (1) All authorities that issue any license, permit, certificate, sanction or approval electronically, shall create, archive and maintain a repository of electronically signed electronic records of such licenses, permits, certificates, sanctions or approvals, as the case may be, online with due timestamps of creation of these individual electronic records." The Rules provide a procedure for making changes in the repository of electronically signed electronic records, in Rule 6. Rule 6(2) indicates that the person authorized to make a change must also electronically sign the change and the time stamps of the original creation and modification of the electronic record. Rule 6(2) reads thus: "6. Procedure for making changes in a repository of electronically signed electronic records.- (2) Any change effected to any record in a repository of electronically signed electr....
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....the electronic form to be defined with precision with reference to both- time and place. 50 In the above context, it is to be noted that the rate of customs duty is determined on the date on which the bill of entry for home consumption is presented (Section 15). The presentation of the bill of entry has to be made electronically (Section 46 read with the 2018 Regulations). The presentation is required to be made on the customs automated system. The provisions in the Customs Act for the electronic presentation of the bill of entry for home consumption and for self-assessment have to be read in the context of Section 13 of the Information Technology Act which recognizes "the dispatch of an electronic record" and "the time of receipt of an electronic record". The legal regime envisaging the electronic presentation of records, such as the presentation of a bill of entry, has been imparted precision as a result of the enabling framework of the Information Technology Act under which these records are maintained. The presentation of the bill of entry under Section 46 is made electronically and is captured with time stamps in terms of the requirements of the Information Technology Act r....
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....h Court in M.D. Overseas Industries vs. Union of India W.P. (C) 7838/2017 decided on 15 October 2019 (Delhi High Court), dealt with a situation where the Director General of Foreign Trade issued two notifications dated 25 August 2017 restricting the importation of gold, including gold coins. Gold coins could no longer be imported freely and had to be imported in accordance with a public notice issued in that behalf. The petitioners urged that the restrictive regime created by these notifications was inapplicable to them because the notifications, they contended, came into force only on 28 August, 2017, when they were published in the official gazette. The gold coins imported by the petitioners, however, were dispatched on 25 August, 2017. Since the notifications came into force three days later, they contended that these were inapplicable to them. The notifications were electronically notified in the gazette. 55 The High Court upheld the Petitioner's view that the notifications were inapplicable to the petitioners after considering Section 8 of the Information Technology Act, 2000 along with the Office Memorandum dated 30.9.2015. It held: "32. The endorsement on the electr....
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....cerpt from page 41 of the High Court's judgment is quoted below: "....The notification was ...published electronically on 6.3.2018. In view of the decision taken by the Government of India in terms of Section 8 of the...Information Technology 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." 57 The Madras High Court dealt with a similar situation in Ruchi Soya Industries vs. Union of India W.P. No. 21207 of 2018 decided on 14 July 2020 (Madras High Court). and held that the decision of the A.P. High Court noted above was applicable to the case before it. As a result, it allowed the writ petition on the same terms and directed the Respondent to refund the enhanced duty collected from the petitioner, along with IGST. 58 With the change in the manner of publishing gazette notifications from analog to dig....
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..... This Court in appeal observed that according to the High Court two conditions were mandatory for the notification to be brought into force (i) Due publication in the official Gazette; and (ii) Offering the notification for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. This Court noted that, in their case, the second condition was not satisfied as the notification was offered for sale only on 6 August 2001 as it was published in the late evening hours of 3 August 2001 and the next two days were holidays. 60 The decision of this Court in Param Industries was on the interpretation of Section 14(2) of the Customs Act. However, prima facie, this decision appears to be contrary to the principles previously elucidated by this Court in the context of the Customs Act. In a two judge Bench decision of this Court in Pankaj Jain Agencies vs. Union of India, (1994) 5 SCC 198 ["Pankaj Jain"] the Court considered the determination of the date when a notification dealing with an exemption would come into force. The mode of publication for such notifications is prescribed separately under Section 25 of the....
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.... that the decision in Pankaj Jain Agencies case [(1994) 5 SCC 198] was not helpful in deciding the question dealt with by the Court. Section 25 of the Customs Act empowers the Central Government to exempt either absolutely or subject to such conditions, from the whole or any part of the duty of customs leviable thereon by a notification in the Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing the notification into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated. Additional requirement is that under Section 159 such notification is required to be laid before each House of Parliament for a period of thirty days as prescribed therein. Hence, in our view Mayer Hans George [AIR 1965 SC 722 : (1965) 1 Cri LJ 641 : (1965) 1 SCR 123] which is followed in Pankaj Jain Agencies case [(1994) 5 SCC 198] represents the correct exposition of law and the notification under Section 25 of the Customs Act would come into operation as soon as it is publish....
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....o provide for an increase in the import duty leviable on such article to such extent as it thinks necessary". Section 8A does not contain language indicative of a legislative intent to authorize the Central government to relate back the exercise of the power to a period prior to its exercise. The exercise of the power under Section 8A (2) is governed by the prescriptions contained in sub-sections (3) and (4) of Section 7. The conferment of the power has not been made retrospective either expressly or by necessary implication. 63 Section 8A enables the Central government to increase the rate of duty on an article in the first schedule in emergent situations. The notification dated 16 February 2019 adds a new entry altogether. Such an exercise may well be regarded as relatable to the provisions of Section 11A. Section 11A confers a power on the Central Government to amend the First schedule in public interest. Section 8A on the other hand contemplates an increase in duty on an article contained in the First schedule. Notification 5/2019 introduces a new tariff entry to provide for a duty of 200% on all articles originating in or exported from Pakistan. However, this aspect of the ....
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.... the Central Government for an order of moratorium and during the period of moratorium to propose either reconstruction or amalgamation of the banking company. A scheme for the purposes contemplated has to be framed by RBI and placed before the Central Government for sanction. Power has been vested in the Central Government in terms of what is ordinarily known as a Henry VIII clause for making orders for removal of difficulties. Section 45(11) requires that copies of the schemes as also such orders made by the Central Government are to be placed before both Houses of Parliament. We do not think this requirement makes the exercise in regard to schemes a legislative process." The above decision was distinguished in New Bank of India Employees' Union vs. Union of India (1996) 8 SCC 407 ["New Bank of India"] where the court held that a scheme framed under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act 1980 stands on a distinct footing of being a legislative and not an administrative function. The court held that the question was not of much relevance in view of its conclusions on the main issues presented for decision. Yet, it considered the ....
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.... excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled." (emphasis supplied) 65 The distinction between the plenary power which is entrusted to Parliament and the state legislatures to enact legislation with both prospective and retrospective effect, and the power entrusted to a delegate of the legislature to frame subordinate legislation has been maintained in a consistent line of precedent of this Court. In Regional Transport Officer, Chittoor vs. Associated Transport Madras (P) (1980) 4 SCC 597, Justice V.R. Krishna Iyer speaking ....
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....fect unless the parent statute, expressly or by necessary implication, authorises it to do so. [Hukam Chand v. Union of India [Hukam Chand v. Union of India, (1972) 2 SCC 601] and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana [Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620] ]. (ii) Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect. (Panchi Devi v. State of Rajasthan [Panchi Devi v. State of Rajasthan, (2009) 2 SCC 589 : (2009) 1 SCC (L&S) 408] ) (iii) As regards a subordinate legislation concerning a fiscal statute, it would not be proper to hold that in the absence of an express provision a delegated authority can impose a tax or a fee. There is no scope or any room for intendment in respect of a compulsory exaction from a citizen. [Ahmedabad Urban Dev. Authority v. Sharadkumar Jayantikumar Pasawalla [Ahmedabad Urban Dev. Authority v. Sharadkumar Jayantikumar Pasawalla, (1992) 3 SCC 285] and State of Rajasthan v. Basant Agrotech (India) Ltd. [State of Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 SCC 1]" The judgment of Justice....
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....or re-assessment. 68 For the above reasons, we have come to the conclusion that there is no merit in the appeals. The appeals shall stand dismissed. There shall be no order as to costs. 69 Pending application(s), if any, stands disposed of. JUSTICE DR DHANANJAYA Y CHANDRACHUD JUSTICE INDU MALHOTRA JUDGMENT K.M. JOSEPH, J. 1. Does a notification under Section 8A of the Customs Tariff Act, 1975 increasing the import duty published late in the evening of 16th Feb 2019, date back to the midnight of the previous day? Does a day include its fractions? While I agree with my esteemed and learned brother in his erudite judgment that the appeals be dismissed, having regard to the questions involved, I have written the following separate opinion: 2. Following the terror attack at Pulwama on 14.02.2019, the Government of India published a Notification on 16.02.2019 (hereinafter referred to as 'the Notification') purporting to be in exercise of powers under Section 8A(1) of the Customs Tariff Act, 1975 (hereinafter referred to as 'the Tariff Act', for short). By the same, the First Schedule to the Tariff Act, 1975 came to be amended in the following manner: ....
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....ue detention memo in terms of Regulation 6(1)(1) of the Customs Act, 1962 and further directing the Respondent No. 4 to release the goods without demanding any ground rent. d) Writ in the nature of certiorari/ mandamus restraining the respondent no.4 for conducting auction of the goods. 5. It is these Writ Petitions which have been allowed by the High Court. 6. The High Court has found that in the Scheme of the Customs Act read with the Tariff Act, the rate of duty is to be determined with reference to two definite indicia, viz., the date of presentation of the Bills of Entry and the movement of goods across the border and availability of the same within the Customs Station. Present these two aspects, the law enables the importer to demand that payment of the duty be with reference to the date of presentation of the Bills of Entry. The High Court did not consider the challenge to the Notification on the basis of the stand taken by the respondents and confined its reasoning to the aforesaid aspect which I have indicated. The Court took the view that the Notification which came to be published late in the evening on 16.02.2019 could not alter the destiny of the Writ Pe....
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....9 was not to be excluded. It was, in other words, to have operation throughout the day, 16.02.2019. It is contended that there cannot be two rates of duty which are at loggerheads with each other on a single day. The time of the day at which the notification was actually published, would pale into insignificance in answering the question as to whether the said notification which is of the kind involved in this case was to hold sway during the course of the whole day. He urges us to notice that Section 15 of the Customs Act does not allude to the time of the day but only refers to the day. He would further contend that by virtue of the notification, the rate in force within the meaning of Section 15 from the mid night of 15.02.2019 was the rate fixed under the notification in respect of the goods governed by the same. Any other interpretation would involve rewriting of Section 15 and the amendment of the provision which is plainly impermissible. He also no doubt points that the authorities have rightfully embarked upon reassessment under the Act upon noticing that the goods were assessed with duty at a rate which was not in force, namely, the rates which stood supplanted by the noti....
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....lls of Entry Regulations, 2018. In particular, he would draw our attention to Regulation 4 of the said Regulations. He would point out that Regulation 4, of the said Regulations, makes it clear that once the Bills of Entry is filed electronically and the event takes place, which under law determines the point of time with reference to which the rate of duty is to be imposed, the position is unalterable. He would submit that neither is the rate of duty dependent on the date of payment of duty nor is it based on Entry Inward. An order is contemplated under Section 47 of the Customs Act for clearing the goods, which contemplates payment of duty as a condition precedent for such an order. This is irrelevant. He would submit that in the present-day world of international trade, innumerable transactions take place at different points of time during the course of the day. The Law Giver has not contemplated the reopening of a transaction, which in the eye of law, is a closed chapter. He would point out that the court must bear in mind that it is dealing with a law which visits a person with a tax. The point of time is transparent and declared through the Scheme of the Customs Act read with....
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....increased to 200 per cent. But this line of argument was not pursued. 12. Both sides referred us exhaustively to case law. ANALYSIS 13. The Customs Act is a consolidating Act. It is intended, inter alia, to deal with the menace of smuggling. It contains various sanctions. It also provides for the levy of Customs duty on import and export. It is a law which provides revenue to the State. It is also an important tool in the hands of the nation to arrange its economic affairs to make it best suited to the welfare of the people otherwise. Indisputably, the charging Section is Section 12. The taxable event is import into or export of goods from India. Ordinarily, the Tariff Act provides the rates at which duty is imposed on imports and exports. There is no dispute that India and Pakistan being S.A.A.R.C. Countries they were parties to an agreement under which the trade between the countries was subjected only to duty on concessional rates. It is while so, following the unfortunate incident of Pulwama that the Government of India in exercise of its powers under Section 8A of the Tariff Act decided to increase the rate of import duty on all goods in the manner done. The Notificat....
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....ein, which includes the power to modify the Notification. The proviso, however, makes it clear that the exercise of power under Section 11A, to amend the First Schedule, will not involve or amount to an increase in the rates which are specified in the First Schedule in regard to duties of customs leviable under the Customs Act. In other words, barring the rate of customs duty, the contents of the First Schedule can be amended by the Central Government under Section 11A. Resultantly, Section 11A does not confer upon the Central Government, the power to increase the rate of duty under the Customs Act. The rate of duty, in other words, ordinarily falls within the province of Parliament, and it is Parliament alone, which can increase or decrease the rate of duty. However, an exception has been carved out under Section 8A to change the rate of duty under the Schedule to the Tariff Act. It is an emergency power vested with the Central Government. The emergency power vested with the Central Government is to change the import duty and the change is limited to an increase in the rate of import duty. The condition requisite is, no doubt, that circumstances exist which render it necessary to ....
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....ns of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government." 18. Section 15 deals with the date relevant to fix the rate of duty. It reads as follows: "15. Date for determination of rate of duty and tariff valuation of imported goods.-(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which a bill of entry for home consumption in respect of such goods is presented under that section; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill 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 ca....
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....e carrying out of the verification [See Section 17(3)]. It is thereafter that Section 17(4) empowers the Officer who carries out the verification to re-assess the duty leviable on such goods. The perusal of Section 17(4) would reveal that such re-assessment can be done, when, on verification, examination or testing of the goods, the officer finds that the self-assessment is not done correctly. Section 17(4) also employs the expression "otherwise" after the words "verification, examination or testing of the goods". It is argued by the learned Additional Solicitor General that the word "otherwise" is attracted in the facts of this case as it is found that the issuance of the Notification on 16.02.2019 albeit in the late evening determined the rate of duty in respect of all Bills of Entry which may have been presented during the course of the day and re-assessment was legally permissible as it fell within the wide embrace of the word "otherwise". This question will be answered after examining, considering and answering the question as to when the Notification commenced. It may also be noticed that Section 18(1)(a), which provides that notwithstanding anything contained in the Act but ....
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....d. Similar provisions are contained in the Central Excise Act as well. It is also noteworthy that Section 2(25) defines the word "imported goods" as meaning the goods brought into India from the place outside India but it does not include the goods which have been cleared for home consumption. 26. A perusal of Section 15(1)(a) makes it clear that as far as goods entered for home consumption under Section 46, the rate of duty is to be the rate of duty in force on the date on which the Bill of Entry in respect of such goods is presented under Section 46. It is not the date on which the goods are ordered to be cleared under Section 47. In fact, the Scheme of the Act, in regard to goods entered for home consumption, is that the importer is to present the Bill of Entry, as contemplated under Section 46, he is to make self- assessment under Section 17(1), he is to make the payment of the duty on the day on which he presents the Bill of Entry under Section 47(2)(a). Should he fail to make the payment on the same day in the case of self- assessment, he becomes liable to pay interest as provided till the date of payment. What is crucial is, however, that only that date is relevant on whi....
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....This is, no doubt, subject to the further requirement that the goods are physically present in the Customs Station. This is for the reason that under the First Proviso to Section 46(3), an importer can present a Bill of Entry in anticipation of the arrival of the goods provided that the presentation of such Bill of Entry is limited to a period not exceeding thirty days prior to the expected arrival. However, in case, where the Bill of Entry is presented under the First Proviso to Section 46(3), the rate of duty will be determined with reference to the act of presentation of the Bill of Entry, but such presentation of the Bill of Entry is by a deeming fiction made only from the date of the entry inwards or of the arrival, as the case may be of the goods. 29. In the facts of these cases, there is no dispute that the imported goods were very much in the Customs Station and the Bills of Entry were presented under Section 46(1) on 16.2.2019. It is clear that the rate of duty, for the purpose of the cases before the Court, is to be determined with reference to the presentation of the Bills of Entry. The law does not take into consideration even the time of payment of the duty which is....
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....It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. 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 recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient [Narayana Reddy v. State of A.P., (1969) 1 Andh WR 77]." 33. This view came to be endorsed in a case under the Customs Act, which is reported in M/s. Pankaj Jain Agencies v. Union of India and others (1994) 5 SCC 198. Therefore, it is only with the publication effected at 20:46:58 hrs. on 16.02.2019, the Notificat....
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...., the notification cannot be said to have been duly published." 36. It may be noticed that a Bench of three learned Judges came to, however, overrule the Judgment in New Tobacco Company (supra) in the decision reported in Union of India and others v. Ganesh Das Bhojraj 2000 (9) SCC 461. Therein a Notification was issued under Section 25 of the Customs Act on 04.02.1987, amending an earlier Notification of the year 1976 by which exemption had been granted and limiting the exemption to the duty in excess of 25 per cent. The Bill of Entry was filed on 05.02.1987. This Court took the view that under Section 25 of the Customs Act, since the Notification dated 04.02.1987 has been published in the Gazette, it had come into force and constituted the rates prevalent on 05.02.1987, when the respondent had filed the Bill of Entry. In fact, the Court noticed the subsequent development in Section 25 of the Customs Act by which sub-Sections (4) and (5) were added to Section 25, which reads as follows: "25. Power to grant exemption from duty.- xxx xxx xxx xxx (4) Every notification issued under subsection (1) or sub-section (2A) shall, - (a) unless otherwise....
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....7, reads as follows: "9 Commencement and termination of time. (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from, and, for the purpose of including the last in a series of days or any other period of time, to use the word to. (2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887." 41. In this case, there is no dispute that Notification under Section 8A was published in the Gazette. It was published at 20:46:58 hrs. on 16.02.2019. It is to be noticed that we are not dealing with a case, where a period of time, limited by two different termini, is present. A Statute may fix a terminus aquo. The Statute may be made to last without indicating when the period is to end, which is the terminus ad quem. 42. Section 9 of the General Clauses Act enunciates the principle, that for, excluding the first in a series of days or any other period of time, it suffices to use the word "from". It al....
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....or was excluded, then, 'A' would be entitled to the bequest as the security given by her would be within the period of six months. It would be profitable to notice the relevant part of the discussion by the learned Judge: "It is not necessary to lay down any general rule upon this subject: but upon technical reasoning I rather think, it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. (See the note, 14 Ves. 554, where it is admitted in bankrupty.) The effect is to render the day a sort of indivisible point; so that any act, done in the compass of it, is no more referrible to any one, than to any other, portion of it; but the act and the day are co-extensive; and therefore the act cannot properly be said to be passed, until the day is passed. This reasoning was adopted by Lord Rosslyn and Lord Thurlow in the case before mentioned of Mercer v. Ogilvie. The ground, on which the judgment of the Court of Session was affirmed by the House of Lords, is correctly stated in the fourth volume of....
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....ay of delivery, and in law there is no fraction of a day." The day of the death of the testator, which is equivalent here to the day of the first meeting, was not reckoned by Sir William Grant in his well-known decision in Lester v. Garland, where a bond had to be given within six months after the testator's decease. The 51st section states that the subsequent or second meeting is to be held "at an interval of not less than fourteen days or more than a month." The word "at" means after the interval, or at some time after the interval, prescribed by the other part of the section. The word "at" refers grammatically rather to a point of time than a period. ......" "... The interval "of not less than fourteen days" was allowed to give reasonable time for deliberation, and to prevent undue haste or surprise, and to afford to the shareholders who might be present at the first meeting, and also to those who might not think fit or might not be able to attend it, time for reflection and consideration, and to make arrangements to enable them to attend the second...." ".... An interval of not less than fourteen days" is equivalent to saying that fourteen days must interv....
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.... in old times, indeed, to make a man a bankrupt was to make him a criminal; ..." "... Bankruptcy is the creature of statute, and under a long series of bankruptcy statutes the same practice as to computing time has been followed, though for different purposes or results; the practice is a perfectly well-known one, the rule in bankruptcy being to exclude the first day or part of a day, and to begin the computation of time on the first whole day. ..." "... Again, there is the rule of construction that if a statute, which so affects a man's status as to be in effect a penal enactment, is capable of two constructions, that one should be adopted which is most favourable to the person affected. Applying this rule, the mode of calculating the twenty-one days ought to be in favour of the debtor doing something which would prevent his becoming a bankrupt at all, and we ought to construe this section as meaning that the first day, or part of a day, is to be excluded from the computation, which should begin on the day after the date of the seizure. ..." (Emphasis supplied) 49. A.L. Smith L.J. agreed with Lord Esher M.R. and held, inter alia, as follows: ....
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....ch general rule was ever held to apply. The present is an a fortiori case; no terminus is mentioned, and the only question is whether the sheriff held for twenty-one days. ..." (Emphasis supplied) 51. On 05.05.1922, by a Notification in the Fort St. George Gazette Extraordinary, published on a Friday, the Table of Fees under Appendix-II, the old Rules on the Original Side of the Madras High Court, was amended and instead of a fixed fee of Rs. 30/- levied under Serial No.1, it was provided that Rs. 150/- was to be levied in all the suits where the value of the subject matter does not exceed Rs. 10,000/-, inter alia. The Notification further recited that the amendments were to come into force from the date of publication in the Fort St. George Gazette. The Gazette Extraordinary reached the High Court at about 05.00 p.m. on 05.05.1922. A Special Bench was constituted to resolve the controversy as to whether the amended Scale of Fees was to apply from the 5th day of May or after excluding the 5th May. The three learned Judges, In Re: Court Fees AIR 1924 Madras 257 proceeded to author three separate Judgments. The majority view is contained in the judgments of the Chie....
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....ation 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 statute or rule is only concerned in fixing the terminus o quo of a new state of law which is enacted to continue indefinitely, in other words, until repealed by a new enactment of the legislature where, in short, you have a terminus a quo but no terminus ad quem. .................................... ...... Where a statute fixes only the terminus a quo of a state of things which is envisaged as to last indefinitely, the common law rule obtains that you ought to neglect fractions of a day and the statute or regulation or order takes effect from the first moment of the day on which it is enacted or passed, that is to say, from midnight of the day preceding the day on which it is promulgated: where, on the other hand, a statute delimits a period marked both by a terminus a quo and a terminus ad....
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....on being that the public ought to have notice that the fees were being raised so that they might know exactly what they were in for when they resorted to the High Court for justice. The notification, as I have already said, was (as appears from a note of the Deputy Registrar) received in the High Court at 5 p.m., the office closing at 5 p.m. It seems to me that the litigants who filed plaints before they or even the office had knowledge of the publication of the rule 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. A person who files a plaint which is properly stamped and which is in order at the time of presentation is entitled to have his plaint admitted on presentation though as a matter of convenience the office receives the plaints and admits them at the end of the day or later on. There seems to me to be very little justice or equity in directing that persons who have done what was perfectly a legal and valid act at the time should pay a Court-fee which is much higher simply because a notification was received at the close of the day making the higher fees chargeable from the date of th....
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....ys to the Government to complete many other formalities before serving the grounds of detention. This is besides being guided by the use of words 'as soon as may be'. THE CASES UNDER CONTRACTS OF INSURANCE 55. In the decision reported in New India Assurance Company Limited vs. Ram Dayal and Others (1990) 2 SCC 680, the vehicle was insured earlier upto 31st August, 1984. Instead of obtaining renewal, a fresh insurance was taken from 28th September, 1984. The accident took place on the very same day, namely, 28th September, 1984. The insurer repudiated its liability as the policy was taken after the accident. The High Court took the view that the policy of insurance became operative from the commencement of the date of insurance, namely, the previous midnight. This Court agreed with the view of the High Court that once a policy is taken on a particular day, its effectiveness is from the commencement of the day. It found the insurer liable. It is necessary only to notice paragraphs 5, 6 and 7: "5. As pointed out in Stroud's judicial Dictionary 'Date' means day, so that where a cover not providing for temporary insurance of a motor car expires 15 days afte....
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....regard to the terms of the Notification, which is a form of delegated legislation, by which the Central Government has increased the rate of import duties of goods imported from Pakistan, though the notification is gazetted on 16.02.2018 at 20:46:58 hrs., there is no period for which it is to last as already noticed, and in that sense, it can be argued that there would be no occasion for exclusion of the date on which it was issued. WHETHER SECTION 5(3) OF THE GENERAL CLAUSES ACT APPLIES TO THE NOTIFICATION? 58. Section 5 (3) reads as follows: "5(3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement." 59. The argument of learned Additional Solicitor General is that in terms of Section 5 (3), the notification issued under the Customs Tariff Act will have effect from the expiry of the previous day. That is to say, it will operate from the first tick of time past the mid night of 15.2.2019. In order to appreciate this argument, we must consider definition of the word 'Central Act' and 'Regulation' in the General Clauses Act. Section 3 (7) defines....
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....ing the day during which the respondents had presented the bill of entry". 63. The question is certainly not free from difficulty. The solution must, however, be found. On one hand, we are dealing with a Notification by which the appellant has purported to increase the rate of duty to a hefty quantum of 200 per cent, following the incident which took place at Pulwama. Would it be a fair and reasonable to include the whole, the day 16.02.2019, having regard to the effect on the importer of the goods who would have struck the bargain on the basis of rate of duty being what it was prior to the Notification? Could it not be said that based on the contracts for import, the importer would have entered into contracts for sale of goods in India where the price would be fixed with reference to the position obtaining as on the date of contract for import. 64. On the other hand, what we are called upon to decide, is the question of time at which the delegated legislation will take effect. It is true that there is no equity about tax. The fact that there is a sudden increase in the rate of tax, may not render it vulnerable on the score that it violates Fundamental Rights. [See in this re....
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.... whole of 16.02.2019 at which the respondents may have presented the Bills of Entry in tune with the prevailing rates of duty which would have been applicable otherwise, it would not detract from the power of authority to reassess on the strength of an instrument like the Notification. What would logically and inexorably follow, in other words, is that the rate of duty applicable during the whole of the day on 16.02.2019 was only the increased rate of duty. This was, therefore, the correct rate of duty at which the importers were to pay the duty. There is no illegality involved in resorting to power enabling reassessment and recovery of the correct duty from the respondents. In other words, there is no retrospectivity involved, runs the argument. 68. There can be no doubt that the principle which appears to have evolved over a period of time is that generally, the law frowns upon determining a day with reference to its fractions. Undoubtedly, in the case of Central Act or a Regulation, the principle is statutorily incorporated in Section 5(3), that unless a contrary intention appears, it begins its journey in the Statute Book from the first point of time past the stroke of the p....
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....rties to adduce evidence in this regard. 74. Section 47 of the Registration Act, 1908, reads as follows: "47. Time from which registered document operates.-A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration." Here again, the time of the day may become decisive. The recent decisions of this Court in regard to insurance contracts appear to accept the significance of the time of the day. (See para 56 of this judgment). 75. Section 5(1) of General Clauses Act, 1897 reads as follows:- "5. Coming into operation of enactments.- (1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,- (a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and (b) in the case of an Act of Parliament, of the President." It must be noticed that law which is made by the legislature is to be treated differently from delegated legislation. A law if made by Parliam....
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....e Tariff Act, as noticed, the Scheme provides for an importer, wishing to enter goods for home consumption, to file Bills of Entry, do self-assessment and pay the duty on the same day. If all goes well, which means that the selfassessment is in accordance with the existing law, and the rate of tax is calculated with reference to the rate of duty as stipulated and the amount of duty is paid, and if there is any other amount to be paid, the same is also paid, Section 47 of the Act would oblige the Officer, unless, of course, the goods are prohibited goods, to issue an Order permitting clearing the goods. Though, there is no Order for clearing the goods in these cases under Section 47, the said Order is the culmination of the steps to be undergone by an importer for clearing the goods. Once the self-assessment is correct and the other conditions in Section 47 do not militate against the importer, the goods can be physically cleared, and having regard to the definition of the "imported goods", they cease to be imported goods. 78. In the context of the Customs Act, and having regard to the Scheme, which, in the case of import duty, consists of filing of Bill of Entry for home consump....
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....his is not a case where the assessment is assailed on any other ground except by insisting on a rate of duty which is in applicable. WHETHER THE CASE LAW RELIED UPON BY THE APPELLANTS MILITATE AGAINST THE AFORESAID VIEW 81. The question which arose before the Constitution Bench of this court in M/s. Bharat Surfactnts (P) Ltd. v. Union of India 1989 (4) SCC 21 may not assist the appellants. The case involved a challenge to Section 15(1)(a) of the customs Act. This court repelled the challenge. More importantly, that was a case where the vessel in which the goods were carried belonging to the petitioners arrived on 11th July 1981. Berth was not available. By reason of the same it could not discharge its cargo at Bombay. This court took the view that what is relevant is the date on which the Bill of Entry is presented. Therefore, it cannot be treated as authority for the proposition canvassed by the appellants. The decision of this Court in Priyanka Overseas (P) Ltd. v. Union of India 1991 Suppl.(1) SCC 102 also will not assist the appellant in persuading this Court to answer the question in favour of the appellant. No doubt, the court has reiterated the principle in....
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....esented on 27.8.2003 after the designated judge had retired to his chamber at 4.15 p.m.. The last date of limitation was 27.8.2003. The court inter alia held as follows: "6. The limitation provided by Section 81 of the Act expires on the 45th day from the date of election. 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. (See Ramkisan Onkarmal Agrawal v. State of Maharashtra [AIR 1994 Bom 87 : 1994 Mah LJ 369] , AIR at p. 94, Municipal Council of Cuddalore v. S. Subrahmania Aiyar [16 MLJ 101 : ILR (1906) 29 Mad 326] and P. Ramanatha Aiyar, The Law Lexicon, pp. 470, 471.) Thus, the election petition could have been presented up to the midnight falling between 27-8-2003 and 28-8-2003." This Court also found that the High Court should not have allowed the period of limitation to be abridged by the rules. This is besides also finding that the rules were not properly appreciated. It is to be noted that question involved was the period of lim....
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....s after the day on which it was to commence (Cartwright v. MacCormack [(1963) 1 WLR 18 : (1963) 1 All ER 11 (CA)] )." XXX XXX XXX XXX 11. The inevitable conclusion is that the expression "date fixed for the performance" is a crystallised notion. This is clear from the fact that the second part "time from which period 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. 12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference ac....
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.... "... we hold it therefore to be unnecessary to refer to instances of the legal meaning of the word 'upon' which, in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject-matter of the enactment." 15. Bovill, C.J., observed that "that is a very clear statement of the various meaning of the word 'on' or 'upon'." 16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned Counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55p.m. on the date fixed for the scrutiny to enable him to take the oath." Clearly the context and the purpose of the statute guided the court in holding that the law disregards fractions and it must be noted that even then in the said case i....