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2021 (8) TMI 133 - MADRAS HIGH COURT100% EOU - purchase of certain machinery from another 100 % EOU - Effective date of amendment - From the date of notification or from retrospective effect - applicability of explanation II to N/N. 23/2003-CE - Section 25(1) of the Customs Act, 1962 - HELD THAT:- There is no dispute as to the fact that the condition imposed with regard to the date of installation or period within which installation has to take place stood amended by Notification No. 34/2015 dated 25.05.2015. In the said amended notification, it has been specifically stated that the amendment is by way of substitution. If such is the position, it is need to be considered, as to what would be the effect of a substituted resolution or the substituted notification. This issue is no longer res integra and has been considered in several decisions and one of which being M/S. MEHLER ENGINEERED PRODUCTS INDIA PVT. LTD VERSUS THE UNION OF INDIA, THE COMMISSIONER OF CUSTOMS, THE ASSISTANT COMMISSIONER OF CUSTOMS (GROUP-3) , THE ASSISTANT COMMISSIONER OF CUSTOMS (REFUNDS) [2018 (7) TMI 39 - MADRAS HIGH COURT] wherein after considering a catena of decisions on the point, it was held that after a subsequent act amends an earlier one in such a way as it incorporates itself or a part of itself into the earlier, the Act must be construed as 'retrospective'. The department has misapplied the explanation to Section 25 of the Act with regard to the coming into force of a notification. There appears to be no dispute as to on what date the notification was published, but, when was it given effect to by operation of law. Then, it has to be held that the notification is retrospective, as it is an amendment by substitution. The learned Single Bench has considered this aspect and has observed that it is true that the notification reads that it is a substitutive amendment, but has denied the relief to the petitioner on the ground that it is an accrued liability - Admittedly, on the date when the show cause notice was issued dated 29.01.2018, the exemption notification stood amended by issuance of Notification No.34/2015. Therefore, the question of treating the amount of duty as an accrued liability is incorrect. The order impugned in the writ petition is without jurisdiction - Petition allowed.
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