2022 (11) TMI 764 - HC - Customs
Rate of Customs duty - Effective date of notification - On the date of bill of entry or date of clearance of goods - Validity of reassessment of bills of entry - non-speaking and unreasoned order or not - contrary to the provisions of Section 17 (5) of Customs Act or not - It is specifically the case of the petitioner that adjudication by the authority of the bill of entry is in violation of the principles of natural justice and in contravention of provision of Section 17(5) of the Act - Constitutional validity of Section 25(4) of the Act as amended by the Finance Act, 2016.
Whether the Notification No.29/2018-CUS dated 01.03.2018 will be effective from 01.03.2018 or 06.03.2018 on the day on which it has been digitally signed? - HELD THAT:- What is effective date of Notification is a question no longer res integra. The Apex Court in case of UNION OF INDIA & OTHERS VERSUS M/S GS CHATHA RICE MILLS & ANOTHER [2020 (9) TMI 903 - SUPREME COURT] was to decide whether Notification No.5 of 2019-CUS dated 16.02.2019, which was uploaded on e-Gazette on 16.02.2019 at 20:46:58 hours are to be made applicable to the bills of entry presented for home consumption before such Notification was uploaded. The Apex Court held in categorical terms that the revised rate of duty apply to bills of entry presented subsequent to uploading of Notification in e-Gazette form.
It is quite clear that when Section 25 of the Act empowers the Central Government to exempt either totally or subject to certain conditions from the whole or any part of the customs duty leviable thereon by a Notification in the Official Gazette, it has also the powers to modify and cancel.
It is also necessary to refer to the decision of RUCHI SOYA INDUSTRIES LTD THROUGH AUTHORIZED REPRESENTATIVE VERSUS UNION OF INDIA & 2 OTHERS [2020 (9) TMI 422 - GUJARAT HIGH COURT] where the bills of entry dated 01.03.2018 and 02.03.2018 were filed under the exemption Notification No.50 of 2017-CUS on the ground that though the principal Notification No.50 of 2017 was amended by Notification No.29 of 2018-CUS dated 01.03.2018 but came to be published electronically on 06.03.2018. The customs department enhanced the custom duty and directed the petitioner to pay the differential duty amount.
This Court needs to remind itself of the extensive way of consideration of the issue of Notification in e-Gazette with the advent of IT Act and particularly, Section 8 of the IT Act. The Ministry of Urban Development discontinued the practice of physical printing and replaced it with electronic Gazette on 30.09.2015 in compliance with the provision of Section 8 of the IT Act. Thus, it switched over to exclusive e-publishing of the Government of India Gazette Notification on its official website with effect from 01.10.2015 and has done away with the physical printing of Gazette Notification. The date of publishing shall be the date of epublication on official website by way of electronic Gazette in respect of Gazette Notification.
So far as the present bills of entry are concerned, under Section 46 of the Act, the rate of duty enforced on the date and the time when the bills of entry presented for home consumption was 40%, the same had been already paid by the petitioner. This by no means could be altered by any power of re-assessment under Section 17 of the Act or at the time of clearance of the goods for home consumption under Section 47 of the Act - The power of re-assessment under Section 17(4) of the Act could not have been exercised as it was not a case of incorrect self assessment of duty. The duty was correctly assessed at the time of selfassessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the Notification bearing (29/2018-Cus, dated 01.03.2018 amending entry no. 65 of table notification no. 50/2017 dated 30.06.2017) would not have any sustained basis for re-assessment.
The Notification could not be said to have been published without declaration form or digital signature certificate. Only after the declaration form and documents are signed digitally that they can be uploaded for e-publishing which has been done on 06.03.2018 at 19:15 hours. Therefore, the effective date of Notification in terms of Section 25(4) of the Act is the date of its publication in Official Gazette in e-mode on 06.03.2018 - Notification, therefore, cannot be said to have come into force on 01.03.2018 and enhanced rate of duty by way of Notification No.29/2018-CUS dated 01.03.2018 surely would not be, therefore, applicable. The petitioner would be entitled to pay only 40% of the duty which was applicable at the time of presenting the bills of entry for home consumption and not 54% under Section 17(4) of the Act.