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TMI Blog2012 (10) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is effective only from 14-6-2002. On 4-7-2002, by way of interim relief, the Respondents had been directed to release the subject shipment on the basis of the duty already paid by the petitioner and in addition thereto on its furnishing "25% bank guarantee towards differential duty". 2. Learned counsel for the parties have been heard in full detail. 3. The facts, so far as relevant for the purpose of deciding these petitions, are that the 'subject shipment' left Malaysia, in June 2002. On 12-6-2002 the petitioners filed a Bill of Entry for Home Consumption in respect thereof and in conformity with Notification No. 29/2002-Cus. (N.T.), dated 16-5-2002 paid a sum of Rs. 2,16,31,258/-. However, it is not in dispute that the 'subject shipment' actually arrived in India only on the following day on 13-6-2002 at 5.50 a.m. The Respondents contended that by that date enhanced tariff became payable by virtue of Notification No. 38/2002-Cus., dated 13-6-2002. In paragraph-10 of the petitions it has been averred that the said Notification "was issued/published only sometime after 12.00 noon on 13-6-2002. It is categorically submitted that its issue and its printing in the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apar (P) Ltd., (1999) 6 SCC 117 = 1999 (112) E.L.T. 3 (S.C.); I.T.C. Ltd. v. C.C.E., (1996) 5 SCC 538 = 1996 (86) E.L.T. 477 (S.C.); Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198 = 1994 (72) E.L.T. 805 (S.C.); and State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 = 1999 (110) E.L.T. 236 (S.C.). Their Lordships enunciated the law in these words. "It is an established practice that the publication in the Official Gazette... is an ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. Individual service of a general Notification on every member of the public is not required and the interested person can acquaint himself with the contents of the Notification published in the Gazette." In doing so, the provisions of sub-section (4) and (5) of Section 25, which were introduced into the Customs Act, 1962 with effect from 1-6-1998, were specifically noticed. The provisions of Section 25 of the Customs Act, 1962 read as under : "25. Power to grant exemption from duty. - (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by Notification in the Official Gazette, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , New Delhi. (5) Notwithstanding anything contained in sub-section (4), where a Notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said Notification comes into force. (6) Notwithstanding anything contained in this Act, no duty shall be collected if the amount of duty leviable is equal to, or less than, one hundred rupees". 6. Our attention has also been drawn to the provisions of Section 15 of the Customs Act, 1962 which is reproduced below for ease of reference. "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 from a warehouse under Section 68, on the date on which the goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian currency" have the meanings respectively assigned to them in clause (m) and clause (q) of Sec. 2 of the Foreign Exchange Management Act, 1999 (42 of 1999)". The Division Bench opined that since that Notification dealt with the trend values only in respect of some of the goods in contradistinction to the class of goods, it was discriminatory in nature. It was for that reason alone that the Notification was not applied. While referring to Section 14(2), the Division Bench observed as follows :- "A reading of the above section makes it clear that tariff values can be fixed only for any class of goods. The Customs Tariff Act, 1975 specifies the class of goods for the purpose of levy of duty. Under the impugned Notification No. 36/2001-Cus. (N.T.), dated 3-8-2011, the trend values have been fixed only in respect of some of the goods viz., Crude Palm Oil, RBD Palmolein classified under Chapter Sub-heading 15.11 constituting only a part of the class of goods being vegetable oils under Chapter Heading 15 of the Tariff Act. Clearly a large number of other vegetable oils such as sunflower, safflower, cottonseed, soyabean, all of which form part of the same class of goods as the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the production and sale for export of these imported goods; (e) "similar goods" means imported goods - (i) which although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable with the goods being valued having regard to the quality, reputation and the existence of trade mark; (ii) produced in the country in which the goods being valued were produced; and (iii) produced by the same person who produced the goods being valued, or where no such goods are available, goods produced by a different person, but shall not include imported goods where engineering, development work, art work, design work, plan or sketch undertaken in India were completed directly or indirectly by the buyer on these imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of these imported goods." (emphasis has been added by us) Had these Rules been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R FRACTONS, OBTAINED SOLELY FROM OLIVES, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED, INCLUDING BLENDS OF THESE OILS OR FRACTIONS WITH OILS OR FRACTIONS OF HEADING NO. 15.09 85% 75% 15.11 PALM OIL AND ITS FRACTIONS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1511.00 - Crude oil 85% 75% 1511.90 - Other 85% 75% 15.12 SUNFLOWER-SEED, SAFFLOWER OR COTTON-SEED OIL AND (FRACTIONS THEREOF) WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED - Sunflower-seed or safflower oil and fractions thereof : 1512.11 - Crude oil 85% 75% 1512.19 - Other 85% 75% - Cotton-seed oil and its fractions 1512.21 - Crude oil, whether or not gossypol been removed 85% 75% 1512.29 - Other 85% 75% 15.13 COCONUT (COPRA), PALM KERNEL OR BABASSU OIL AND (FRACTIONS THEREOF), WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1513.11 - Crude oil 85% 75% 1513.19 - Other 85% 75% - Palm kernel or babassu oil and (fractions ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd would increase or decrease. It is for this reason, it seems to us, to be inescapable that each of the subject headings contained in Chapter 15 of Section III comprises a different class of goods in themselves. This being so, it is open to the Legislature to prescribe and modify from time to time different tariff rates in respect of each of them and such action of the instrumentalities or functionaries could not be termed as violative of Article 14 of the Constitution of India. Section 14(2) which was amended by the Finance Act, 2007, specifically contemplates the actual price of the commodities at any given point of time. Therefore, Chapter 15 of the Customs Tariff Act, 1975 cannot be dealt with as one composite subject, and each of the entries mentioning a class of goods and their cleavages or fragments or divisions can be dealt with separately and distinctly. We think it proper to reiterate that the definition contained in the Customs (Valuation) Rules, 1988 was not brought to the notice of the Division Bench which decided Param Industries, as is manifestly evident from a perusal thereof. 10. In view of this analysis, we find no merit in the second argument advanced by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s be prevented from taking undue advantage by invoking jurisdiction of the Court. (4) A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. (5) No litigant can derive benefit from the mere pendency of a case in a Court of law. (6) A party cannot be allowed to take any benefit of his own wrongs. (7) Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the Court. (8) The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of Courts". 14. Accordingly, the writ petitions are dismissed with costs of Rs. 25,000/- on each petition. The interim orders are recalled. The shortfall of the duty paid as against the duty demanded/leviable under the subject Notification dated 13-6-2002 together with interest thereon at the rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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