TaxTMI 
TaxTMI 
2023 (4) TMI 220
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....sumption after depositing the customs duty on the assessible value of Rs.55,99,484/-. The goods cleared vide bill of entry no. 6459749 dated 18.08.2014 were shipped on 17.07.2014 and the goods covered under Bill of Entry No. 6690337 dated 08.09.2014 were shipped on 07.08.2014 from the country of origin. The Director General of Audit on scrutiny of the data noticed that the safeguard duty was not levied on import of Seamless Steel Tubes. On the basis of the audit objection, Show Cause Notice dated 25.11.2014 was issued for short levy of duty of Rs. 11,19,896/- towards safeguard duty. 3. The levy of safeguard duty under the show Cause Notice was affirmed by the Assistant Commissioner vide Order-in-original dated 20.07.2015. On appeal being filed by the appellant, the issuance of show cause notice was held to be valid and the findings for levy of safeguard Duty was confirmed by the Commissioner of Customs (Appeals) as per OIA dated 18.09.2017. Hence the present appeal has been filed before this Tribunal. 4. We have heard the learned Counsel for the appellant and also the authorized representative for the revenue and perused the records of the case. 5. The appellant has reiter....
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....refunded such duty can be demanded under section 28 by issuing a show cause notice. There is no need to assail the original assessment order in this case. In other words, if there is excess payment due to assessment, the claimant of refund will have to first challenge the assessment but if there is short payment, short levy, etc., a demand can be raised without first challenging the assessment. " So we do not find any fault in the present case in taking recourse by issuing the show cause notice under section 28 of the Customs Act calling upon the appellant to pay the safeguard duty not levied. 8. Before adverting to the issue on merits on the applicability of the safeguard duty in the present case, it would be relevant to set out certain provisions of the CTA governing the levy of Safeguard Duty:- "Section 8B - Power of Central Government to apply safeguard measures. (1) If the Central Government, after conducting such enquiry as it deems fit, is satisfied that any article is imported into India in such increased quantity and under such conditions so as to cause or threaten to cause serious injury to domestic industry, it may, by notification in the Official....
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.... the date on which it was applied. (6) Notwithstanding anything contained in the foregoing sub-sections, a notification issued under sub-section (1) or any safeguard measures applied under sub-sections (2), (3), (4) and (5), shall not apply to articles imported by a hundred per cent. export-oriented undertaking or a unit in a special economic zone, unless,- (i) it is specifically made applicable in such notification or to such undertaking or unit: or (ii) such article is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, in which case, safeguard measures shall be applied on the portion of the article so cleared or used, as was applicable when it was imported into India. Explanation.- For the purposes of this sub-section,- (a) the expression "hundred per cent. export-oriented undertaking" shall have the same meaning as assigned to it in clause (i) of Explanation 2 to subsection (1) of section 3 of the Central Excise Act, 1944(1 of 1944.); (b) the expression "special economic zone" shall have the same meaning as assigned to it in clause (za) ....
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....ia; or (ii) whose collective output of the like article or a directly competitive article in India constitutes a major share of the total production of the said article in India; (c) "serious injury" means an injury causing significant overall impairment in the position of a domestic industry; (d) "threat of serious injury" means a clear and imminent danger of serious injury. (12) Every notification issued under this section shall be laid, as soon as may be after it is issued, before each House of Parliament, while it is in session, for a total 5 period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be issued, the notification shall thereafter have effect only in such modified form or be of 10 no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification." ....
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....) ten per cent. ad valorem when imported during the period from 13th August, 2015 to 12th August, 2016 (both days inclusive); and (c) five per cent, ad valorem when imported during the period from 13th August, 2016 to 12th February, 2017. 2. Nothing contained in this notification shall apply to imports of Seamless Pipes and Tubes from countries notified as developing countries under clause (a) of sub-section (6) of section 8B of the Customs Tariff Act, other than the People's Republic of China. Note: For the purpose of this notification, Seamless Pipes and Tubes does not include- (i) Seamless alloy-steel pipes, lubes and hollow profiles of specification ASTM A213/ASME SA 213 and ASTM A335 /ASME SA 335 or equivalent BIS/DIN/BS/EN or any other equivalent specifications; (ii) Non APl and Patented Premium Joints/Premium Connections/Premium Threaded Tubes and Pipes of grades Q-125, 13CR, L-80, P110, C-90, C-95, T-90 and T-95; (iii) A 13 Chromium (13CR) Grades Tubes and Pipes not included in item (ii) above; and (iv) Drill Collars. 10. We shall now consider the submission of the appellant that the safeguard duty which ....
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....s Act, to mean any goods brought into India from a place outside India and also on the term 'India' as defined in sub-section (27) of section 2 of the Customs Act to say that it includes territorial waters of India. Further, the appellant fortified its argument by saying that duty under section 12 is levied on goods being imported into India which includes the territorial waters of India and therefore the goods attain the character of imported goods upon entering territorial waters of India which in the present case is much prior to the date of notification. On this aspect, the appellant have relied on several judgments, such as: 1. M.S. Shawhney, Asstt. Collector of Customs and Another v/s Sylvania and Laxman Limited 1987 (30) ELT 126 (Bom.) 2. Jain Shudh Vanaspati Limited v/s S.R. Patankar, Assistant Collector of Customs , Bombay and others 1988 ELT 77 (Bom) 3. National Textile Corporation v/s Collector of Customs, Bombay 1987 (32) ELT 80 (Tri.) 4. Commissioner of Customs, Chennai v/s Suja Rubber Industries 2002 (142) ELT 586 (Tri-Chn.) 12. We have already discussed the issue of applicability of the provisions of the Customs Act to t....
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....s been observed: "4. It is thus the clear requirement of clause (b) of sub- section (1) of section 15 of the Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross- reference to section 49 of the Act shows that an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he may be permitted to do so. The other relevant provision is that contained in section 68 of the Act which provides that the importer of any warehoused goods may clear them for "home consumption" if, inter alia, the import duty leviable on them has been paid. That is why clause (b) of sub-section (1) of section 15 of the Act makes a reference to section 68. It is therefore quite clear that the rate of duty, rate of exchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse. As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were ....
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.... is relevant is the date on which the bill of entry in respect of goods is presented under section 46 and in the case of goods which are warehoused the relevant date would be the date on which the goods are actually removed from the warehouse. 19. We would like to refer some of the decisions of the Tribunal on the issue of 'relevant date' in terms of section 15 of the Customs Act. The Larger Bench of this Tribunal in Collector of Customs, Bombay Vs New India Industries, Bombay, 1985 (21) ELT 159, took note of the earlier decision of the Larger Bench of the Tribunal in the case of Bayer (India) Ltd 1984 (16) ELT 375 which took the view that it is futile to contend that the vital relevant date for determination of duty is the time when the goods entered the territorial waters of India. The decision of the Delhi High Court in Jain Shudh Vanaspati 1983 ELT 1688, Madras High Court in M. Jamal & Co. Vs Union of India 1981 ECR 14D and Kerala High Court in Aluminum Industries Ltd Vs. Union of India 1984 (16) ELT 183, were relied on as it has been categorically held therein that levy is not confined only to the import of the goods but extends to assessment and that the relevant date is t....
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....d imports have caused or threaten to cause serious injury to domestic industry, it shall be specified in the notification under sub-rule (1) that such safeguard duty shall take effect from the date of levy of provisional duty." 23. We agree that Rule 14 of the Safeguard Rules provides that the date of imposition of safeguard duty shall be the date only after publication of the Notification in the official gazette and therefore the safeguard duty shall not be applicable in the case of goods cleared vide Bill of Entry No. 6459749 dated 18.08.2014 as the same is prior to the publication of the Notification. It is a settled principle of law that a notification comes into force from the date of its publication in the official gazette. In view of the reasoning above, we are not inclined to accept the submissions of the revenue that rule 14 being subordinate legislation cannot take precedence over the statutory provisions for the simple reason that the notification being subordinate legislation cannot go contrary either to the Act or the Rules. We would like to refer to the decision in Union of India and Ors. Vs M/s GS Chatha, Rice Mills and Anr 2020 (374) ELT 289, where the Apex Court....
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....y 2019." 24. We need to refer the latest decision dated 03.02.2023 in the case of Adani Wilmar Ltd., vs. Commissioner of Cus., Bangalore in Customs Appeal No. 20277/2020 where the Bill of Entry was presented on 01.03.2018 and the Notification under section 25 of the Customs Act was also issued on 01.03.2018 but the same was digitally signed & e-gazetted on 06.03.2018. The Tribunal Regional Bench, Bangalore, taking note of the decision of the Gujarat High Court in Adani Wilmar Ltd., Civil Miscellaneous Application No. 8058/2019 dated 11.11.2022 in Ruchi Soya Industries Ltd., -2020-TIOL-1501-HC-AHM-CUS also the decision of the A.P. High Court in Ruchi Soya Industries Ltd., -2019 SCC ONLINE AP 151 & the decision of the Supreme Court in Union of India vs. G.S. Chatha Rice Mills (supra) concluded that the exemption notification came into effect only on 06.03.2018, on which date it was published in the official gazette. The law enunciated by the Supreme Court, the various High Courts & also by this Tribunal is clear that a notification comes into effect only from the date on which it is published. 25. However, we cannot ignore that the intention of the Government was to implement t....