TMI Blog2014 (8) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... statute either specifically or by necessary implication gives such provision retrospective effect. Hon’ble High Court of Gujarat in the case of CC(preventive) v. Goyal Traders reported in [2011 (8) TMI 720 - Gujarat High Court] held that liability to pay interest created by statute shall have prospective application for which Revenue’s contentions are devoid of merit and the impugned order has no basis - Decided in favour of assessee. - Appeal No. C/185/2012 - FINAL ORDER NO. 53171/2014 - Dated:- 12-8-2014 - Mr. D.N. Panda and Mr.Manmohan Singh, JJ. For the Appellant : Shri Rachit Jain, Advocate For the Respondent : Ms. Ranjana Jha, DR JUDGEMENT PER: D.N.PANDA; The appellant came before Tribunal challenging the order of learned Commissioner (Appeal) holding that interest on the differential duty levied on finalisation of provisional assessment shall be recoverable under section 18(3) of Customs Act, 1962 (herein after referred to as the Act ). Appellant contends that provisions of Section 18(3) of Customs Act, 1962 shall not be applicable to the provisional assessments made before 13.07.2006 even though finalised after that date i.e. on 18.07.2011. But l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less there are words in the statue sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only nova constitution futuris formam imponere debet non praeteritis - a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438) [Emphasis supplied]. (4) In the case of Rochiram Sons v. Union of India, 2008 (226) ELT 20 (SC.), the Hon ble Supreme Court has held that substantive laws are generally not retrospective unless specified to the contrary by the Legislature. In the case of CIT v. Gwalior Rayon Silk Mfg. Co. Ltd. (992) 3 SCC 326, the Hon ble Supreme Court also observed that it is settled law that unless it is expressly stated or by necessary implication a statute should always be read as prospective. To similar effect is the judgment of Hon ble Supreme Court in the case of S.L. Srinivasa Jute Mills (P) Ltd. v. Union of India (2006) 2 SCC 740. (5) In the present case, there are neither express words nor necessary implication to consider the provision as retrospective. Provision of law relating to levy of interest was insert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 2003 and 2004 to decide on 47 bills of entry covering the import period from April 2002 to May 2004 to make re-adjudication after Tribunal decides the appeal against the order of Commissioner (Appeal) of Customs ICD Tuglakabad since that had relevance in determining the value of import goods. Re-adjudication was completed by order 18.07.2011 passed imposing interest on differential duty in such re-adjudication properly determined in final assessment. In appeal against that order, ld. Commissioner (Appeal) by his order dated 31.01.2012 confirmed levy of interest under section 18(3) of the Act on differential duty liability arose on finalisation of provisional assessment on 18.07.2011. 5. It was further submitted on behalf of Revenue that assessment includes provisional assessment. Therefore appellant is required to pay interest on the differential duty element since assessment included provisional assessment and re-assessment was mere confirmation of provisional assessment with the levy of differential duty. made after 13.07.2006. That covered the conclusion of provisional assessment. Revenue relied on the judgment in the case of Binani Industries Ltd. Vs. ect - (2007) 15 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dens to impair existing obligations. Unless there are words in the statute sufficient to show the intention of legislature to affect existing rights, it is deemed to be prospective only. A new law ought to regulate what is to follow, not the past. It is not necessary that an express provision be made to make a stature retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. 10. It was further held by the Apex Court in the case of Zile Singh as follows: The presumption against retrospective operation is not applicable to declaratory statures. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te another word or phrase for that which actually appears in the text of the Act (p. 231). 13. There is no fixed formula for the expression of legislative intent to give retropsectivity to an enactment. Every legislation whether prospective or retrospective has to be subjected to the question of legislative competence. The retrospectivity is liable to be decided on a few touchstones such as: (i) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of validating clause would not by itself affect the retrospective operation of the statutory provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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