TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 516
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....ion praying for return of the interest amount of Rs. 13,04,464/- which according to the appellant has been illegally collected in the name of rent, insurance and GST charges which are not payable by the appellant. The facts leading to the filing of the writ petition are set out hereunder: 4. The appellant was granted advance license by the Foreign Trade Development Officer, Mumbai dated 26.06.2002 to manufacture and export of 310 metric tons of zinc oxide of 100% purity through their supporting manufacturers. On 15.07.2002, the appellant purchased on high sea sales basis zinc ingots the said product which were stuffed into eight containers, were ceased by the Directorate of Revenue Intelligence, (DRI) on the allegation that the goods were to be diverted to the local market instead of sending the same to the supporting manufacturers for manufacture of goods to be exported. Show cause notice dated 14.02.2003 was issued as to why, the eight containers which were detained should not be signed and the goods to be confiscated in terms of Section 111 of the Customs Act, 1962, (the Act). The appellant submitted their reply and the show cause notice was adjudicated culminating in an order-....
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....kept in the bonded warehouse for which rent has been demanded and recovered from the appellant/writ petitioner pertains to the period prior to the amendment/substitution as the period for which rent has been recovered is from 2001 to 2009 which covers both pre-substituted provisions of Section 68 and post substituted provisions of Section 68. The learned Writ court held that CWC was perfectly justified in demanding rent for the period prior to 14.05.2016 and the appellant is entitled for refund of the rent which has been collected for the period after 14.05.2016. The appellant being aggrieved by that portion of the order passed by the learned single bench in not granting full relief to the appellant by way of directing refund/return of the entire amount has filed the present appeal. 6. The case of the appellant is that the amendment to Section 68 of the Act by which the term "rent" has been deleted by way of substitution is retrospective in nature and not prospective on and from 14.05.2016 when the substitution took place. It is submitted that Section 68(b) of the Act has been substituted whereby the words penalty, interest and other charges was substituted with the words interest....
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....2016 and hence the appellant is not entitled for protection under the amended Section 68 and cannot claim that the amended provision will operate retrospectively. Further it was stated that the detention charges and warehousing charges are payable to the custodians and shall be paid by the appellant even where the customs detention has been finally held as improper or illegal. 8. The learned advocate for the appellant placed heavy reliance upon the communication dated 25.05.2019 from the Deputy Commissioner of Customs, apprising Group IV, Kolkata, to the Regional Manager of CWC informing him to release the goods as per guidelines under Regulation 6(l) of the Cargo Handling Rules in Customs Area 2009 (regulations). In spite of said factual position, CWC by communication dated 04.07.2019, directed the appellant to pay the storage charges and insurance charges which was paid by the appellant under protest. After referring to the amendment to Section 68 of the Act by Finance Act, 2016, published in the Gazette of India dated 14.05.2016, the learned advocate for the appellant referred to the Regulations 6(l) and submitted that the said regulation clearly states that subject to any othe....
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....ver of the warehousing charges by CWC. 10. In reply, learned advocate appearing for the appellant submitted that the two decisions relied on by the learned standing counsel for DRI appear to have been passed much after the law laid down by the Hon'ble Supreme Court in Gottumukkala Venkata Krishamraju and Indian Tobacco Association and those decisions having not been considered in the case of Chandra Sekhar Jha, the said decision is per incuriam. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Mamleshwar Prasad and Another Versus Kanhaiya Lal (1975) 2 SCC 232. 11. The first aspect which we have to point out is that the appellant was found guilty of diverting the goods meant for manufacture of export goods resulting in issuance of show cause notice proposing to confiscate the goods, and impose penalty and other charges. The order was put to challenge before the tribunal and the tribunal initially allowed the appeal and remanded the matter to the adjudicating authority for de novo consideration. While the matter was pending before the adjudicating authority, the appellant filed an appeal against the said order of the tribunal before....
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....rlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. No doubt, in certain situations, the Court having regard to the purport and object sought to be achieved by the Legislature may construe the word "substitution" as an "amendment" having a prospective effect. Therefore, we do not think that it is a universal Rule that the word 'substitution' necessarily or always connotes two severable steps, that is to say, one of repeal and Anr. of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise. Insofar as present case is concerned, as discussed hereinafter, the legislative intent was also to give effect to the amended provision even in respect of those incumbents who were in service as on September 01, 2016. 12. In Indian Tobacco Association, the Hon'ble Supreme Court pointed out as follows:- The word "substitute" ordinarily would mean "to put (one) in place of another"; or ....
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....ds were warehoused stands extinguished in its entirety after the amendment. The power to demand and collect rent flows to CWC from the statutory provision. Thus, statutorily CWC was entitled to demand and collect rent. Having steered clear of this aspect, we once again need to examine the facts of the appellant's case. The order of adjudication dated 05.01.2018 imposing fine, duty and penalty was unconditionally accepted by the appellant. The corollary being that the appellant is guilty of having illegally diverted the goods in the local market without utilizing the goods imported under advance license for manufacture of product for export. The question would be whether such a person who has been found guilty of violating the terms and conditions of the advance license can seek for waiver or complete waiver of the warehousing charges. The detention and confiscation of the goods having been held to be valid on account of the fact that the appellant accepted the order-in-original, the appellant cannot be heard to say that the entire warehousing charges has to be waived. More particularly when the goods were warehoused much earlier to the amendment of the statutory provision. Therefor....