TMI Blog2016 (6) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... jection of certain words as meaningless. It is elementary that if a provision in a statute can be read without adding words thereto or subtracting words therefrom, that would be the ideal construction, unless it throws up an absurd result. The literal construction in this case does not result in any absurdity. The fallacy in the petitioners’ argument is that it is founded on the responses received following the queries raised under the Act of 2005. The queries and the responses received are on the mistaken premise that it is the notification as published in the Official Gazette that must be put on sale. The wording of the relevant sub-section does not warrant such a construction. Both clauses of such sub-section would be complied with if a notification were to be issued for publication in the Official Gazette and such notification were to be simultaneously put up on the website and otherwise offered for sale, though the timing of the issuance of the notification may have resulted in the publication in the Official Gazette to be made a day later. As long as the publication of a relevant notification is made in the Official Gazette, whether within reasonable time or at the first a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id variety of oil. The petitioners claim that five bills of entry were filed on behalf of the petitioning assessee seeking clearance of the said goods for home consumption on September 14 and 15, 2015. According to the petitioners, the vessel carrying the oil arrived at the port of Haldia on September 14, 2015, but inward entry was granted to the relevant vessel under Section 31 of the Customs Act, 1962 at 0530 hours on September 17, 2015. The petitioners accept that in terms of the proviso to Section 15(1) of the said Act, the date for determination of the duty and tariff valuation of the imported goods was to be reckoned as September 17, 2015 as the date of entry inwards of the vessel would be the effective date if the bill of entry in respect of the imported goods were to be presented prior to the date of entry inwards of the vessel. The petitioners claim that as at the date of entry inwards of the vessel, on September 17, 2015, the rate of duty payable was 7.5 per cent in respect of the value of the goods in terms of a notification published in the Gazette of India on March 17, 2012. 3. On September 17, 2015, notification no. 46/2015-Customs was issued by the Ministry of Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 2015 when a copy of the Official Gazette containing the said notification was offered for sale, the petitioning assessee is not liable to pay the enhanced duty as per the said notification as the assessee continued to be governed by the previous rate that was prevalent on September 17, 2015 which is the date to be reckoned for determination of duty and tariff valuation under Section 15 of the said Act of 1962. 6. The petitioners emphasise on Section 25(1) of the Act to suggest that the wording thereof precludes any notification issued thereunder becoming effective prior to its publication in the Official Gazette. The petitioners say that the operative words in sub-section (1) of Section 25 of the said Act are: the Central Government may by notification in the Official Gazette, exempt The petitioners contend that since the provision mandates that what the Central Government may do thereunder is only by notification in the Official Gazette, it is not possible for any notification under Section 25(1) of the said Act to be regarded as effective prior to the publication thereof in the Official Gazette. The petitioners next refer to key sub-section (4) of Section 25 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Karnataka pertained to a demand for duty at an enhanced rate pursuant to a notification under Section 14(2) of the Act which was alleged to have come into effect on August 3, 2001. The challenge was on the ground that the notification was published in the Official Gazette only on August 6, 2001 and, as such, it could not be made effective prior to its publication in the Official Gazette. The Customs authorities claimed that the notification published on August 3, 2001 itself. Though the adjudication in the matter did not pertain to a notification under Section 25 of the Act, the High Court referred to Section 25 of the Act by way of analogy to determine the time when a notification under Section 14(2) of the Act came into effect. The following passage from paragraph 12 of the report is of relevance: 12. It is also to be seen that the Parliament has added subsections (4) and (5) to Section 25 of the Customs Act by Act No. 25 of 1998 w.e.f. 1-6-1998, prescribing that unless otherwise provided, every notification issued under Section 25(1) shall come into force on the date of its issue by the Central Government for publication in Official Gazette with the further stipulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 3-8-2001 in late evening hours and 4/5-8-2001 were holidays. 12. The reason for agreeing with the view taken by the High Court was on the strength of the dictum in a judgment reported at (1952) SCR 110 (Harla v. State of Rajasthan) as evident from paragraph 4 of the report. The Customs authorities submit that the Supreme Court order in Param Industries Limited should not be regarded as good law since the two-judge bench did not take into account a three-judge bench judgment reported at (2000) 160 ELT 431 (Union of India v. Ganesh Das Bhojraj) where the dictum in Harla was explained and held to be inapplicable to a situation as in Section 25(1) of the said Act. 13. In Ganesh Das Bhojraj, the Supreme Court considered a matter governed by Section 25(1) of the said Act as it operated prior to sub-sections (4) and (5) being incorporated into Section 25 by an amendment of 1998. Prior to the 1998 amendment, Section 25(1) of the said Act was similar, in its material terms, to Section 14(2) of the said Act as it then stood. The essence of the Supreme Court opinion is found in the following passage at paragraph 12 of the report: 12. Section 25 of the Customs Act empowers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained 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) (7) (8) 16. Prior to sub-section (4) being incorporated in Section 25 of the Act, a notification issued under Section 25(1) of the Act could be said to come into operation and be effective only upon its publication in the Official Gazette. The dictum in Ganesh Das Bhojraj must also be remembered that it is such publication in the Official Gazette that would make a notification effective, without any further act or deed. However, the situation is completely altered after the introduction of sub-section (4) into the provision. Sub-section (4) stipulates when a notification under sub-section (1) would come into force and must be seen to qualify the more general words used in sub-section (1). In the absence of sub-section (4), subsection (1) would imply that a notification under such provision would come into force upon its publication in the Official Gazette. Such prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 25(4)(a) of the Act is at variance with Section 25(1) thereof. It is the cardinal rule of statutory interpretation that the plain meaning of the words ought to be accepted and given effect to unless it leads to an absurdity or it defeats the purpose of the provision or falls foul of any like mischief rule. 19. That does not mean that a notification may be issued for its publication in the Official Gazette, without it being actually published in the Official Gazette and yet the notification be regarded as having come into force. That would be an irrational construction of the provision. But if a notification is issued on a particular date and is required immediately thereupon to be published in the Official Gazette, upon the publication being made in the Official Gazette within a reasonable time (or even at the earliest available opportunity) the notification would be deemed to have come into force on the date of its issue for publication in the Official Gazette. It is possible, therefore, that a notification be issued for publication towards the close of a day and the publication in the Official Gazette takes place the following day, but the notification would have come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the efficacy of a notification that has been issued for publication in the Official Gazette and has been published in the Official Gazette. However, if a breach of a relevant notification results in any criminal liability, that would not fasten till clause (b) is complied with; the civil liability under the notification will not be affected by the non-compliance of the mandate in clause (b). 23. Indeed, in Ganesh Das Bhojraj, the concurring opinion made a distinction between the operation of the rule as recognised in the substantive judgment to matters involving civil liability and criminal liability and restricted the operation of such rule only to civil liability. 24. The Karnataka judgment in Param Industries Limited imported the provision of Section 25(4) of the Act into Section 14(2) thereof when there may not have been any warrant to do so since the interpretation of Section 14(2) would be governed by the dictum in Ganesh Das Bhojraj on the pari materia wording of Section 25(1) of the Act. The Supreme Court judgment in Param Industries Limited did not have any occasion to deal with Section 25 of the Act. Even though the dictum in the Supreme Court judgment may be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultaneously put up on the website and otherwise offered for sale, though the timing of the issuance of the notification may have resulted in the publication in the Official Gazette to be made a day later. As long as the publication of a relevant notification is made in the Official Gazette, whether within reasonable time or at the first available opportunity of such notification being issued for publication therein, the notification comes into effect immediately upon its issuance for publication in the Official Gazette notwithstanding the publication in the Official Gazette being later. 28. The Union has disclosed in an affidavit that the notification was published in the Official Gazette on September 17, 2015. There is no creditable denial to such assertion. It is not the petitioners case that the relevant Official Gazette is ante-dated. The Union has also claimed in the affidavit that though the Official Gazette containing the notification may not have been offered for sale on September 17, 2015, but copies of the notification were put on sale, nonetheless. The Union says that it has no cash memo to show since no one purchased the notification on September 17, 2015. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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