TaxTMI 
TaxTMI 
2026 (1) TMI 176
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....otherwise bad in law. (c) In alternate subject to what is stated above, this Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, direction or order that the Notification No. 29/2018-Cus dated 1.3.2018(Annexure G) is effective and operational from 6.3.2018 only and not prior thereto and that the same is not applicable in the facts of the instant case. (d) Issue a writ of certiorari or any other appropriate writ, order or direction while quashing the reassessment/assessment of the subject three Ex-Bond Bills of Entry viz. Ex-Bond of Entry No.5401809, Annexure-K. Exbond Bill of Entry No. 5401837, Annexure-Y and Ex-Bond Bill Entry No.5401810 all dated: 1.3.2018 and one subject Bill of Entry No.5420843, Annexure-JJ dated 2.3.2018 as done by the Respondents on 5.3.2018 and 2.3.2018 as stated above while asking the Petitioner to pay higher rate of duty for clearance of the subject goods. (e) Issue a writ of mandamus or any other appropriate writ, order or direction while directing the Respondents, its officials, agents, servants etc. to pay a place at the disposal of the Petitioner an amount of Rs.3,40,99,332/- with interest....
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....18/DMI/KK -01 to No. C18/DMI/KK-04 all dated February 6, 2018 as per vessel "MT CAMDEN VOY.18" from the port of Dubai, Indonesia with port of discharge being Kakinada, Andhra Pradesh. 5. The petitioner further contended that the petitioner filed six ex-bond bills of entry under section 68 of the Customs Act, 1962, for clearance of the subject goods for home consumption, viz., bills of entry Nos. 5401915 and 5402027, both dated March 1, 2018 and bills of entry Nos. 5419273, 5419349, 5419387 and 5419452, all dated March 2, 2018, the subject goods shipped had initially filed warehousing bill of entry No. 5295797, dated February 21, 2018. The subject goods merit classification under Customs Tariff Heading 1511 10 00 of the Customs Tariff Act and the subject goods are covered by entry 57 II(A) of Notification No. 50/2017-Cus., dated June 30, 2017 and the petitioner was required to pay, 30 per cent. basic Customs duty. Further, vide Notification No. 50/2017-Cus., dated June 30, 2017, rate of duty from 7.5 per cent. (basic customs duty) was increased from time to time and by the date of import, the rate of duty was 30 per cent., vide Notification No. 87/2017-Cus., dated November ....
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....ise provides. The word "notification" is not defined in the General Clauses Act, but the word "Official Gazette" or "Gazette" is defined under section 3(39) of the General Clauses Act, 1897, which defined that the word "Gazette" or "Official Gazette" shall mean the Gazette of India or the Official Gazette of a State. 35. Section 21 of the General Clauses Act deals with power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws, it is also relevant to the present case and it reads as follows : "Where, by any (Central Act) or Regulation, a power to (issue notifications), orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any (notifications), orders, rules or bye-laws so (issued)." 36. When the rule prescribed specific procedure to be followed, the Central Government has to follow such rules and issue notifications. In the instant case, section 25(1), (2A) of the Act mandates issue of notification in the Official Gazette, whereas, sub-section (4) of section 25 says t....
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....e-amended and post-amended clauses are tabulated hereunder. 47. As per pre-amended Act of section 25(4), every notification issued under sub-section (1) or sub-section (2A) is deemed to have come into force on the date of issue of notification by the Central Government for publication in the Official Gazette. Clause (b) of the pre-amended Act further says that notification shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. 48. No doubt, clause (b) of section 25(4) of pre-amended Act is totally omitted and the notification is deemed to have come into force on the date of its issue by the Central Government for publication in the Official Gazette remained intact. Therefore, the pre-amended provisions of sub-sections (1), (2A) and (4) are not reconciling with one another, but on account of deletion of clause (b) of sub-section (4) of section 25, a friction was created and sections 25(1), (2A) and (4) are not reconciling with one another. According to sub-section (1) of section 25 of the post-amended Act, the Central Government if satisfied that it is necessary in the publ....
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....that the notifications issued under sub-section (1), i. e., for exemptions from duty is deemed to have come into force on the date of issue of such notification by the Central Government for publication in the Official Gazette. The issue of Gazette notification, as contemplated under sub-section (1), (2A) of section 25 is to bring the notifications to the notice of the public or to bring the same into effect on the date of publication. The purpose of Gazette notification time and again is discussed by the courts and intention of the Legislature of publication of any notification is only to give effect to particular provision or enactment, making the public to know about the Act or amendment, after any enactment passed by the State or Central Legislature. Unless, the public are aware about any enactment or amendment of any provision, they cannot be made liable for any acts or omissions which the public committed. Thus, the purpose of Gazette notification is to import or attribute knowledge about amended provision or enactment to the public, to act within the limitations prescribed under the enactment or amended provisions. Otherwise, it amounts to keeping the public in dark and crea....
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.... 61. In S. G. Jaisinghani v. Union of India (1967) 2 SCR 703, the larger Bench of the apex court observed that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey-Law of the Constitution-Tenth Edition, Introduction ex). The apex court made a reference to United States v. Wunderlick (1951) 342 US 98, wherein it was held that, "when it has freed man from he unlimited discretion of some ruler. .. where discretion ; absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield....
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.... Perhaps to avoid such contingency to give effect to the notification on the date of publication, the Government of India amended subsection (4) of section 25 of the Customs Act, 1962. But, subsection (1) and sub-section (2A) of section 25 were not suitably amended and they remained as it is. Therefore, sub-sections (1), (2A) and (4) of section 25 are running contra to one another, creating confusion in the minds of public at large, at least to the person who is dealing with the Department. Thus, it is evident from the record that the notification was not signed at least by the competent authority on the date of presentation of ex-bond bill of entry before the competent authority for release of imported goods for home consumption in accordance with section 15(1)(b) read with section 68 of the Customs Act for clearance of the goods for home consumption and the relevant date for determination of the duty is the date of presentation of ex-bond bills of entry for release of the goods which is explicit from section 15(1)(b) of the Act. But the respondents collected the Customs duty initially at 30 per cent., but later by the time of release, Customs duty was enhanced at 44 per cent. and....
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.... 8, 2018. M/s. S. N. Overseas, imported said goods No. 8 "MT BRILLANTE VOY. NO. 1801" vide 5 bills of lading dated February 7, 2018. M/s. S. N. Overseas raised 3 invoices dated February 23, 2018 upon the petitioner pertaining to the aforesaid imported goods. 4.1 The petitioner filed three bills of entry dated March 1, 2018 under section 46 of the Customs Act, 1962 (for short "the Customs Act") seeking clearance of the said imported goods for home consumption so as to pay the custom duty as per section 15(1)(a) of the Customs Act, which provides date for determination of rate of duty and tariff valuation of imported goods. 4.2 According to the petitioner, the bills of entry filed by the petitioner would not be governed by the provisions of section 15(1)(a) of the Customs Act as aforesaid bills of entry was filed under the provisions of section 46 of the Customs Act seeking clearance of goods for home consumption and for the purpose of determination of duty and tariff valuation if applicable shall be the date when such bills of entry were presented on March 1, 2018. 4.3 According to the petitioner, the crude palm oil and edible grade falls under the classif....
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...."(A) The Hon'ble court be pleased to declare and hold that section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016 is arbitrary, illegal, ultra virus and unconstitutional and strike down the same accordingly. (B) The Hon'ble court be pleased to issue a writ of certiorari or any other appropriate writ, direction or order while quashing and setting aside Notification No. 29/2018-Cus., dated March 1, 2018 being illegal, arbitrary, ultra virus and infringing the fundamental rights of the petitioner to trade and otherwise bad in law. (C) In alternate subject to what is stated above, this Hon'ble court may be pleased to issue writ of mandamus or any other appropriate writ, direction or order that Notification No. 29/2018-Cus., dated March 1, 2018 is effective and operational from March 6, 2018 only and not prior thereto and that the same is not applicable in the facts of the instant case. (D) The Hon'ble court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction while quashing the respondent-assessment of the subject three bills of entry, viz., bill of entry No. 5410142, bill of entry No. ....
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...., as the same pertains to the provisions of section 25(4) prior to its amendment by the Finance Act, 2016 and the said decision was rendered on the facts of the case relying upon the affidavit of the respondent with regard to the publication of the notification of September 17, 2015. 22. As the contentions raised by the respondents are duly considered in the judgment and order passed by the Andhra Pradesh High Court, we do not reiterate the reasons to deal with the same. 23. In view of the foregoing reasons, the provisions of section 25(4) of the Customs Act, 1962 is declared as arbitrary and contrary to section 25(1) and (2A) of the Customs Act, 1962. The respondents are therefore, directed to refund the excess amount of custom duty and differential amount of IGST collected from the petitioners for clearance of imported goods for home consumption as per the notification published subsequently to the date of filing of bills of entry with simple interest at six per cent. per annum from the date of deposit till the date of payment. The writ petitions therefore, succeed and are allowed. Rule made absolute to the aforesaid extent with no order as to costs." (....
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.... (Kailash Choudhary) Under Secretary to the Govt. of India" (emphasis supplied) 32. The endorsement on the electronic copy of the Gazette, whereby the impugned Notification Nos. 24 and 25, dated August 25, 2017, were notified, seen in juxtaposition with section 8 of the IT Act, and of the OM dated September 30, 2015 supra, of the Ministry of Urban Development, makes it clear that the impugned Notification Nos. 24 and 25, dated August 25, 2017 were, in fact, electronically published in the Official Gazette only at or after 10:47 p. m. on August 28, 2017. 33. It has been conclusively held, by the Supreme Court, in a catena of decisions-including Harla v. State of Rajasthan (1952) 1 SCR 110, B. K. Srinivasan v. State of Karnataka AIR 1987 SC 1059 and Union of India v. Param Industries Ltd. [2016] 41 GSTR 1 (SC) ; (2016) 16 SCC 692 that, notifications would come into force on their publication in the Official Gazette, i. e., in the present case, with effect from the date and time when they were electronically printed in the Gazette, which was at or after 10:47 p. m. on August 28, 2017. 34. The imports of the gold coins by the petitioners ....
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....he Andhra Pradesh High Court in Ruchi Soya Industries Ltd. (supra). The findings recorded in the said judgment are extracted herein under: "In view of the law declared by the Courts with regard to interpretation of taxing statutes, it is clear that when the amended provision or any provision of the statute creates serious inconvenience, serious absurdity, confusion or friction, contradiction and conflict between its various provisions, the same is illegal and amendment of sub-section (4) of Section 25 giving effect to the notification from the date of its issue for publication in the Gazette is an arbitrary exercise of power by the Legislature and it is totally contrary to the purport of sub-section (1) and subsection (2-A) of Section 25 of the Act, which mandates publication of notification in the Official Gazette. Therefore, to avoid inconvenience, serious absurdity, confusion or friction, contradiction and conflict between various provisions, amended provision of sub-section (4) of Section 25 which is enacted by arbitrary exercise of power by the Legislature, is liable to be struck down. The notification was published on 6.3.2018 which is impugned in these writ....
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....ers beyond 30% of customs duty. One of the contentions raised by the learned Counsel for the respondents, when a remedy by way of appeal under Sections 128 and 129(A) of the Customs Act is available, the petitioner is disentitled to claim relief under Article 226 of the Constitution of India. But, the said contention cannot be accepted for the simple reason that the appellate authority or Tribunal cannot declare any provision in the statute as illegal or arbitrary. Therefore, we find no force in the argument of the learned Counsel for the respondents and the same is rejected. In view of our foregoing discussion, Section 25(4) of the Customs Act is declared as arbitrary and contrary to Section 25(1) and (2-A) of the Customs Act, 1962 and that the respondents are liable to repay the amount collected from the petitioners for clearance of imported goods for home consumption beyond the original rate prevailing on the date of prior to date of publication of notification i.e. Rs.2,88,16,200/- with interest paid by the petitioner from the date of deposit till the date of payment. 81. In the result, writ petitions are allowed." 19. The aforesaid reasons s....
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....e question as to whether the shift from the analog to the digital for Gazette notifications has any bearing for ascertaining when they come into force. The judgments which dealt with the starting point for the enforceability of notifications were all concerned with circumstances in which such publication took place in the physical gazette. We are now required to determine if the shift to electronic gazettes has brought about a change in this position. 90. The High Courts have begun offering guidance on this score. The Delhi High Court in M.D. Overseas Ltd. v. Union of India [M.D. Overseas Ltd. v. Union of India, 2019 SCC OnLine Del 11885], dealt with a situation where the Director General of Foreign Trade issued two Notifications dated 25-8-2017 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 28-8-2017, when they were published in the Official Gazette. The gold coins ....
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....8 from Dubai. The petitioner filed two bills of entry for 2000 metric tonnes of crude oil on 1-3- 2018. They were assessed that day and levied with 30% customs duty and 10% social welfare surcharge. On the same date, a notification raised the basic customs duty from 30 to 44%. The petitioner filed four bills of entry for the remaining 2000 tonnes on 2-3-2018 and argued that the revised rate was not applicable to it because the Notification was published in the electronic gazette only on 6-3-2018. The High Court agreed with the petitioner and held that the revised notification would come into force only after it was digitally signed by the competent official and uploaded and published in the Official Gazette. The relevant excerpt from para 77 of the High Court's judgment is quoted below : (Ruchi Soya Industries Ltd. case [Ruchi Soya Industries Ltd. v. Union of India, 2019 SCC OnLine AP 151], SCC OnLine AP) "77. 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 b....