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2022 (11) TMI 764
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....der of reassessment of bills of entry No.5407944 and 5407946 'Annexure B (Colly); (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.3, his servants and agents to return/refund the differential amount of duty paid by the petitioner company being Rs.72,15,893/- regarding bill of entry No.5407944 and Rs.72,15,611/- regarding bill of entry No.5407946; (C) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing order in appeal No.KDLCUSTM- 0000-APP-07 to 071-18-19 dated 21.1.2019 (Annexure-A); (D) Pending hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent No.3, his servants and agents to return/refund the differential amount of duty paid by the petitioner company being Rs.1,44,31,505/- regarding bill of entry No.5407944 and Rs.1,44,31,505/- regarding bill of entry No.5407946 on such terms and conditions as this Hon'ble Court thinks fit; (E) an ex parte ad interim relief in terms of para 7 (D)....
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....and 3 questioning the very maintainability of the petition. In absence of any breach of fundamental or legal right of the petitioner, it is urged to dismiss this petition in limine. 4.1 It is further contended that the constitutional validity of Section 25(4) of the Act as amended by the Finance Act, 2016 is challenged on the ground of the same being discriminatory, arbitrary, illegal and violative of Article 14 of the Constitution of India. According to the respondents, a bare perusal of Section 25(4) of the Act required that both the conditions are required to be satisfied for the enforcement of the Notification. The Central Government issues a Notification for publication in Official Gazette with further stipulation that such gazette Notification shall be offered on the date of its issuance by the Directorate of Publicity and Public Relations of the Board, New Delhi. The Notification is issued under Section 25(1) of the Act as it is necessary in public interest. Section 25(4) of the Act draws its power and is subject to Section 25(1) of the Act provides for grant of exemption from duty, it is for the Central Government to decide in public interest to exempt generally either a....
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....IT Act' hereianfter) provides thus: SECTION 8: "Publication of rule, regulation, etc., in Electronic Gazette. "Where any law provides that any rule, regulation, order, bye-law, 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." 6. It is further contended that the Government has implemented the step of not taking out the hard copy of any Gazette and instead to circulate only the soft copy, the soft copy will be validated only if it is signed by the concerned authority. The digitally signed Notification is dated 06.03.2018 for having been signed by the authority on the said date and the Notification come into force on 06.03.2018. The e-publishing of the Gazette Notification has been initiated in consonan....
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....nd relied on the following decisions in support of their respective submissions: (i) Union of India and others vs. Ganesh Das Bhojraj, reported in (2000) 9 SCC 461 (ii) Union of India and others vs. G.S.Chatha Rice Mills and another, reported in (2021) 2 SCC 209 (iii) Ruchi Soya Industries Ltd. vs. Union of India, reported in 2021 (375) E.L.T. 497 (Guj.) (iv) Union of India vs. G.S.Chatha Rice Mills, reported in 2020 (374) E.L.T. 289 (S.C.) 8.1 The only issue which this Court is required to consider is as to whether the Notification No.29/2018-CUS dated 01.03.2018 will be effective from 01.03.2018 or 06.03.2018 on the day on which it has been digitally signed. 9. What is effective date of Notification is a question no longer res integra. The Apex Court in case of UNION OF INDIA VS. G.S.CHATHA RICE MILLS, reported in 2020(374) E.L.T. 289 (SC) was to decide whether Notification No.5 of 2019-CUS dated 16.02.2019, which was uploaded on e-Gazette on 16.02.2019 at 20:46:58 hours are to be made applicable to the bills of entry presented for home consumption before such Notification was uploaded. The Apex Court held in categorical terms that the re....
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....fering guidance on this score. The Delhi High Court in M.D. Overseas Industries v. Union of India [W.P. (C) 7838/2017 decided on 15 October, 2019 (Delhi High Court)] [2020 (371) E.L.T. 319 (Del.)], 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....
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.... the competent official and uploaded and published in the official gazette. The relevant excerpts from page 41 of the High Court's judgment is quoted below: "... The notification was Published electronically on 06.03.2018. 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 Gazettee 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 06.03.2018 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 v. 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. ....
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....issuance of a letter to the Assistant Controller, Government of India (Press) was not sufficient for the notification to be operational and enforceable on 3 August, 2001. 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 v. Union of India, [(1994) 5 SCC 198 1994 (72) E.L.T. 805 (S.C.)) ["Pankaj Jain'] th....
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....ntention and after relying upon the decision in the case of Mayer Hans George (AIR 1965 SC 722: (1965) 1 Cri LJ 641 (1965) 1 SCR 123] rejected the same. That decision is followed in I.T.C. Ltd. [(1996) 5 SCC 538] and other matters. Hence, it is difficult to agree 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 conte Parliament for a period of thirty days as prescribed therein. Hence, in our view Mayer Hans George [AIR....
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....on any article in the first schedule should be increased; and (ii) that circumstances exist which render it necessary to take immediate action. The Central Government in the exercise of this power may by a notification in the official gazette direct an amendment of the 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". 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 subsections (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 as relatable to the provisions of Section 11A, Section 11A confers a power on the Central Government to amend the First schedule ....
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....that the power to frame a scheme under Section 45 of the Banking Regulation Act, 1949 was not legislative in character but an administrative function. This Court observed : "9...But is the scheme-making process legislative? Power has been conferred on the RBI in certain stations to take steps for applying the Central Government for an order of moratorium and during 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 v. Union of India [(1996) 8 SCC 407] ['New Bank of India] where the court held that a scheme framed under Section ....
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.... fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in 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....
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....the power to frame subordinate legislation is not retrospective unless it is authorized expressly or by necessary implication by the parent statute. The Court observed: "26...The relevant principles are: (i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect 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 p....
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.... entry in terms of the provisions of Section 15 read with Regulation 4(2) of the Regulations of 2018. The power of re-assessment under Section 17(4) could not have been exercised since this is not a case where there was an incorrect self-assessment of duty. The duty was correctly assessed at the time of self assessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the notification bearing No. 5/2019 did .not furnish a valid basis for reassessment." Concurring this view, the very aspect is dealt with in the specific summation by one of the Honourable Judges of the Bench this wise: "147. 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 consumption, self-assessment and payment of duty on the basis of the same and the rate being clearly fixed with reference to the particular point of time when the Bill of Entry is presented and there is a deemed presentation and even a deemed assessment, which is otherwise in order, and bearing in mind the principle that Section 8A does not provide power for increase of rate of duty with re....
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....on No.29 of 2018 dated 01.03.2018 would be effective from the date of issue or from the date of publication in e-Gazette, where the Court held that the Notification is deemed to have come into force on the date of signing of the Notification by the competent authority as otherwise there is no Notification in the eyes of law. Notification cannot be said to have come into force on the date of its issue for publication in the Gazette, but, it shall be deemed to have come into force on the date when it is published. Madras High Court also has followed the aforesaid decision of Andhra Pradesh High Court in the case of Ruchi Soya Industries Ltd (supra), 2021 (375) E.L.T. 40 (Mad.) where again it is held that effective date of amendment Notification will be the date of publication of the Notification. 11. This Court is of the view that mere pendency of the Special Leave Petition (Civil) Diary No.26479 of 2020 will not be a reason for this Court to not hold otherwise than what has been held in case of Ruchi Soya Industries Ltd (supra) by the Coordinate Bench of this Court following the decision of the Andhra Pradesh High Court, which also has been followed by the Madras High Court. This....
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....ifications has any bearing for ascertaining as to when the same has come into force and whether this switching over to the digital manner of publication has brought about a change in this position has resulted into the Court concluding that the time of publication in digital mode would be the date and time on which it would come into effect." 14. So far as the present bills of entry are concerned, under Section 46 of the Act, the rate of duty enforced on the date and the time when the bills of entry presented for home consumption was 40%, the same had been already paid by the petitioner. This by no means could be altered by any power of re-assessment under Section 17 of the Act or at the time of clearance of the goods for home consumption under Section 47 of the Act. The rate of duty as held by the Apex Court in case of G.S.Chatha Rice Mills (supra) shall have to be what was crystallized at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 of the Act. The power of re-assessment under Section 17(4) of the Act could not have been exercised as it was not a case of incorrect self assessment of duty. The duty was correctly ass....