TaxTMI 
TaxTMI 
TaxTMI 
1992 (5) TMI 26
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....itioners is that the petitioner No. 1 Jindal Strips Ltd. is engaged in the manufacture and sale of steel strips and owns and operates several factories all over India including a large factory at Hissar in the State of Haryana. On 6th July, 1989 the said company placed an order for the generating set of Finish Make on an exporter in Bremen, East Germany and the said order was amended by an order dated 4th August, 1990 valued at Rs. 2,90,00,000/-. The Company was granted appropriate licence for the importation of the said generating set by the appropriate authority. The said generating set was required to be captively used in its factory at Hissar to generate electricity for running the factory at the time of power failure arising out of load shedding. On 17th September, 1990 the foreign exporter shipped the said generating set from Bremen to Calcutta via Madras Port per M.V. "SUDA". Another identical generating set was also shipped in the same vessel which was imported by M/s. Chemicals & Plastics India Ltd., Madras. The relevant notification granting the benefit of exemption and fixing the effective rate of basic customs duty at 30% only, issued by the Central Government in exerci....
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.... The provisional assessment was made @ 35% basic customs duty and 50% auxiliary duty in terms of the revised notifications which according to the respondents came into effect on 18-12-1990 i.e. the day the vessel entered into Calcutta Port. The case of the petitioners is that though the notifications are dated 18-12-1990 and 15-12-1990, they were published on 10-1-1991 and 14-1-1991. It is also the case of the petitioners that the said notification dated 18-12-1990 is not applicable in the case of importation of the said generating set and the petitioners are liable to pay 30% plus 30% i.e. total 60% duty and not 85% duty as assessed provisionally by the respondents. As per provisional assessment Rs. 2,48,96,500/- (Rs. 1,02,51,500/- basic plus Rs. 1,46,45,000/- auxiliary) was payable by the petitioners. Thus, according to the petitioners, an excess amount of Rs. 73,22,500/- was paid and/or the same was realised by the respondents as otherwise the goods could have incurred further demurrage. The further case of the petitioners is that the petitioners had no option but to make payment of the aforesaid sum of Rs. 2,48,96,500/- as provisionally assessed under protest on 31-1-1991 and t....
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....pplication is whether the rate mentioned in Notification Nos. 59/89 and 144/89 would be applicable in the instant case as the rate in force on 18-12-1990 or the subsequent Notification Nos. 296/90 and 287/90 would be applicable which were made on 18-12-1990 and 15-12-1990 though the Gazette publishing the notification were released for public sale on 14-1-1991 and 10-1-1991. 6. It is submitted by Mr. Roychowdhury that in the Notification dated 18th December, 1990 it is mentioned "to be published". So, it is apparent that the Notification was not published prior to 18th December, 1990 and as such, the Duty which was payable was 30% plus 30% and not 35% plus 50%. Mr. Roychowdhury refers to Section 15 of the Customs Act, 1962 which 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 for a warehouse under ....
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....uld be taken against the person. It is submitted by Mr. Roychowdhury that it is the essence that order has to be communicated to the person who would be affected by the order before the State and that person could be bound by that order. Until that order is not communicated to the person affected by it, the person concerned is not bound by that order. 10. Mr. Roychowdhury refers to a decision reported in 1990 (50) E.L.T. (Mad.) 29, "Union of India v. Asia Tobacco Co. Ltd." and submits that the order published means it should be known to the public and unless publication is made, the Notification will not be applicable. Mr. Roychowdhury also relied upon another decision reported in 1990 (50) E.L.T. (Mad.) 127, *M.B. Udyog v. Collector of Customs" and submitted that a Notification will be applicable and effective only when it is made available to the public. 11. Mr. Roychowdhury further referred to 1992 (58) E.L.T. (Bom.) 199 "Jai Hind Oil Mills Co. v. Union of India and 1990 (47) E.L.T. 93, "Haryana Plywood Industry v. Collector of Customs'* and submitted that a Gazette Notification having a particular date is presumed to be published on the date indicated therein unless provided ....
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.... Appellate Tribunal in its order in question had held that the effect of the exemption notification is the date on which it was made known to the pubic and not the date of its publication in the Gazette." 15. It is further submitted by Mr. Roychowdhury that the Customs Authorities should be directed to refund the excess amount of Rs. 73,22,500/-, collected without any authority of law, with interest. Mr. Roychowdhury also relied upon the following cases:- 1. Radheshyam Tulsian v. Collector of Customs - 1987 (31) E.L.T. page 58(Cal.) 2. Neeraj Newspaper Association v. Assistant Collector of Customs - 1988(33) E.L.T. page 89 (Cal.) 3. India Cements Ltd. v. Collector of Central Excise - 1989 (41) E.L.T. page 348 (S.C.) paras 10 & 13. 16. It is submitted by Mr. Roychowdhury that the issue involved in this case is the rate at which customs and allied duties were to be levied on the generating sets imported by the petitioner in terms of Section 15 of the Customs Act, 1962. Sub-section (1) of Section 15 of the Customs Act provides that the rate of duty applicable for levying of duty is the rate which is enforced on the date of the presentation of the Bill of Entry. The proviso to Sec....
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....ly either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. 20. It is submitted by Mr. Prantosh Mukherjee, learned Advocate for the respondents, that there is no provision for publication and the Gazette mentioned in this sub-section (1) of Section 25 means periodical publication giving current events, and the publication is not necessary. The moment the Notification was issued, the same became applicable upon the petitioner. Mr. Prantosh Mukherjee relied on a decision reported in AIR 1987 S.C. 1059 (B.K. Srinivasan v. State of Karnataka), wherein it was held: "There can he no doubt about the proposition that where a law, whether Parliamentary or Subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientiously bad man' seeking to avoid the law, ....
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....customs duties are compulsory contributions imposed by the sovereign authority. The error resides in the assertion that it is an executive action. The Judiciary cannot restrain the taxes, however great the hardship may appear to the judicial mind to be. All that it can enquire into is the legislative competence in a Federal written constitution. Therefore, to the Notification issued under Section 25(1) of the Act, the doctrine of promissory estoppel has no application. It cannot be held that the withdrawal of exemption was such action as interfered with the petitioner's right to carry on business or trade. The Government was competent to withdraw the exemptions once granted, whether the notification granting the exemption was time-bound or not. The exemption was withdrawn in public interest and the withdrawal notifications are valid; and (ii) that imposing restrictions upon business such as import or export of goods will be in the interest of the general public. The system of tariffs and licensing for imports and exports was a reasonable restrictions on the right to carry on trade. If could not be held in the instant cases that the petitioners' right under Article 19(l)(g) of the ....
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....ise to disputed questions of construction as regards certain expressions used in the Act. We consider that it would be conducive to clarity as well as to the avoidance of unnecessary technical objections giving occasion for litigation. If an enactment on the lines of the U.K. Statutory Instruments Act, 1946, were made in India, either by an amendment of the General Clauses Act or by independent legislation keeping in mind the difficulties of construction to which the U.K. enactment has given rise." 24. Mr. Mukherjee also relied upon a decision reported in E.C.R. C. (S.C.) 147. It was claimed that the retrospective operation given to Section 7(1) by sub-section (2) was illegal, ultra vires, and unconstitutional; also that the provision in Rule 10 which contained the machinery for enforcing the demand was not adequate to meet the situation arising out of the change in the law from the provisions of the Bill to those of the Act. The Nagpur High Court had repelled the contention disputing the constitutionality of Section 7(2) but upheld the objection relating to the adequacy of Rule 10. Thereafter, Rule 10A was added and challenge to the adequacy of Rule 10A was also rejected by a Ful....