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2016 (9) TMI 670

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..... levied on its invoice value, and not on the tariff value prescribed subsequently in Notification No.36/2001 dated 03.08.2001. The High Court has stated that for bringing the notification into force and make it effective, two conditions are mandatory, viz., (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays - the notification will be effective only from 06.08.2001. Petition disposed off - decided in favor of petitioner. - WRIT PETITION Nos. 19303 OF 2001 and batch - - - Dated:- 21-6-2016 - SRI RAMESH RANGANATHAN AND SRI M.SATYANARAYANA MURTHY, JJ. For The Petitioner : Sri G.L. Rawal, Learned Senior Counsel,Sri Y. Srinivasa Reddy and Sri G. Anandam. For The Respondent : Sri P.S.P. Suresh Kumar, Learned Standing Counsel for Central Excise COMMON ORDER: (per Honble Sri Justice Ramesh Ranganathan) W .....

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..... ries Ltd , that Notification No.36 of 2001 came into force only with effect from 07.08.2001 and, consequently, the tariff value prescribed under the said notification cannot be applied retrospectively on the goods imported earlier on 03.08.2001; as the very same notification has been held by the Supreme Court to have come into force on or after 06.08.2001, the respondents cannot apply the tariff value prescribed under Notification No.36 of 2001 to goods imported on 03.08.2001; reliance placed on behalf of the respondents, on the Division Bench judgment of this Court in M/s. K.G.F. Cotton Pvt. Ltd v. Union of India , is misplaced; the judgment of the Karnataka High Court in Param Industries Ltd v. Union of India was affirmed by the Supreme Court in Param Industries Ltd 2015 (321) E.L.T. 192 (S.C.) it is evident, from the facts noted in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), that Notification No.36/2001 could only have been published in the Gazette of India on or after 06.08.2001; and, since the bill of entry for home consumption is dated 03.08.2001, the tariff value of RBD Palmolein oil, as prescribed in Notification No.36/2001, should not have been applied to this earlier .....

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..... bench, in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), is binding on this Court. At the outset it is necessary to note that Notification No.36/2001 dated 03.08.2001 was issued by the CBEC fixing the tariff value of the imported goods i.e. R.B.D. Palmolein oil at 372 U.S. dollars per metric tonne. But for the tariff value being fixed, the invoice value of the said goods ie 248 U.S. dollars per metric tonne would have formed the basis for levy of customs duty. The question which must be examined is whether Notification No.36/2001 dated 03.08.2001 would apply to the subject goods, i.e., R.B.D. Palmolein oil which was imported by the petitioner on 03.08.2001 as is evident from the bill of entry for home consumption dated 03.08.2001. If the said notification is held applicable, the respondents must be held to be justified in levying customs duty on the tariff value of R.B.D. Palmolein oil at 372 U.S. dollars per metric tonne. If, however, the said notification is held inapplicable in determining the value of the subject goods imported on 03.08.2001, the petitioner must then be held to be justified in paying customs duty on the invoice .....

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..... s that notification was published in the Gazette on 3-8-2001 itself. It is also to be seen that in response to a clarification sought by the petitioners, the Assistant Controller (Business), Government of India, Department of Publication, Delhi vide his letter dated 10- 9-2001 has informed the petitioners that Issue No. 548 of the Official Gazette was made available for public sale on 6-8-2001 as per the records of the department. The issue number of the Customs Notification No. 36/2001-CUS (N.T.), dated 3-8-2001 being 549, it is clearly established that the said notification was made available for public sale on or after 6-8-2001, and therefore, the question of publication of the notification dated 3-8-2001 on the same day does not arise. It is also to be seen that on the basis of bill of entry for home consumption assessment was completed. Under the circumstances, no inference can be drawn that the notification dated 3-8-2001 was gazetted on the same day itself. It is also to be seen that the Parliament has added Sub- sections (4) and (5) to Section 25 of the Customs Act by Act 25 of 1998 with effect from 1- 6-1998, prescribing that unless otherwise provided, every notificatio .....

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..... that Annexure-R1 is not the Gazette notification, it is only a letter addressed to the Manager, Government of India Press, Mayapuri, New Delhi to publish the notification dated 3-8-2001 and no records have been produced to show the exact date on which notification was published in the Gazette. Annexure-R1 would only reveal that the notification was forwarded to the Manager, Government of India Press to publish the same in the Official Gazette and there is no record further to show that pursuant to the said letter Gazette notification was published on 3-8-2001 itself. But on a perusal, it is clear from Annexure-R1 that the date 6-8-2001 has been overwritten as 3-8-2001 and that apart in the letter sent to the Government of India Press on 3-8- 2001 the said overwriting has not been attested or explained in the affidavit. Be that as it may. What is produced is the Xerox copy of the letter and therefore the said letter is not helpful to show that it was published in the Gazette on 3-8-2001 itself in the Gazette on the same day and on the other hand it would help the petitioners' contention.... So the notification is liable to be set aside. We are constrained to hold that contrar .....

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..... e dissenting from the decision of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), the Division Bench of this Court, in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), relying on Sections 35, 38 and 81 of the Indian Evidence Act, held that the Court is required to presume the contents of the Official Gazette as genuine; and, as the Gazette recorded that its contents were published on 03.08.2001, Notification No.36/2001 must be presumed to have come into force on 03.08.2001. Section 35 of the Indian Evidence Act relates to the relevance of public records made in performance of an official duty. Section 38 relates to the relevance of statements as to any law contained in law books and Section 81 relates to the presumption as to Gazettes and other documents. The contents of the Gazette are admissible in evidence, being the official record evidencing public affairs, and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act unless the contrary is proved. (Ganesh Das Bhojraj(2000) 9 SCC 461; M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 20 .....

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..... , the question which necessitates examination is whether this Court can follow the judgement of the Division Bench of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), and take a view different from that of the Division Bench of this Court in M/s. K.G.F. Cotton Pvt. Ltd (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013). It is necessary, in this context, to bear in mind that a Division Bench is bound by the judgment of another Division Bench and a Full Bench of the same High Court. They cannot differ from the earlier judgment of co-ordinate jurisdiction merely because they hold a different view as certainty and uniformity in the administration of justice are of paramount importance. (Commissioner of Income Tax v. M/s B.R. Constructions ). An earlier decision may seem to be incorrect to a bench of coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier, but it would not be a reason to say that the decision was rendered per incuriam and is liable to be ignored. .....

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..... . Section 25(4) stipulates that every notification, issued under sub-section (1), shall, (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette; (b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. Section 25(5) stipulates that 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. It is because of Section 25(4) and (5) that an exemption notification, issued under Section 25(1), would come into force from the date on which it is offered for sale by the Directorate of Publicity and Public Relations, and not earlier from the date of its publication in the Official Gazette. As is evident from the observations of the Division Bench of the Karnataka High Court in Param Industries Ltd2002 (150) E.L.T. 3 (Kar.), (extracted earlier in this judgment .....

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..... well, we find that though the notification may have been published on the date when the goods were cleared, it was not offered for sale by the concerned Board, which event took place much thereafter. Therefore, it was not justified and lawful on the part of the Department to claim the differential amount of duty on the basis of said notification. These appeals are, accordingly, allowed only on this ground and it is not necessary to go into other issues at all.. (emphasis supplied). In M/s. K.G.F. Cotton Pvt. Ltd(Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), a Division bench of this Court observed:- Sub-section (2) of S.14 of the Act empower the Board to fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, by notification in the Official Gazette and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. In contrast, S.25(1) empowers the Central Government to grant exemption of goods from duty and sub-section (4) thereof states that such notification will come into force on the date of its issue by the Central Government for publication .....

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..... ay, the price actually paid or payable for the goods when sold for export to India for delivery at the time and place of importation, where the buyer and seller of the goods are not related and price is the sole consideration for the sale subject to such other conditions as may be specified in the rules made in this behalf. In terms of Section 14(1) the invoice value of the goods is required to be taken as the basis for levy of customs duty. Section 14(2), however, stipulates that notwithstanding anything contained in sub-section (1), if the Board (CBEC) is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix the tariff value for any class of imported goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. In view of the non-obstante clause in Section 14(2) the value of the imported goods, for the purpose of levy of customs duty, shall be the tariff value fixed by way of a notification issued by the CBEC, and not the invoice value of the goods. While Section 25 confers power on the Central Government to gra .....

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..... nts has produced an attested copy of the Gazette of India No.549 dated 03.08.2001 showing that the notification No.36/2001-CUS(NT) issued by the Central Board of Excise and Customs was published on 03.08.2001.. The above two cases were considered by a 3 Judge bench of the Supreme Court in Ganesh Das Bhoj Raj (3 supra). The Supreme Court overruled New Tobacco Co. (1998) 97 E.L.T. 388 (SC) (1 supra) and approved the decision in Pankaj Jain Agencies ((1994) 5 SCC 198 supra). It held that for bringing a notification u/s.25 of the Act into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated; that 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; that gazette is admissible being the official record evidencing public affairs and the Court is required to presume its contents as genuine u/s.35 and 38 r/w S.81 of the Evidence Act, 1872 unless the contrary is proved. It held that the original copy of the notification dated 04.02.1987 published in the Gazett .....

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..... ents of the Supreme Court in M/s. Pankaj Jain Agencies (1994) 5 SCC 198 and Ganesh Das Bhojraj(2000) 9 SCC 461, can hold that Notification No.36/2001 came into force on the date of its publication in the Official Gazette on 03.08.2001, ignoring the latter Division Bench judgment of the Supreme Court, in Param Industries Ltd2015 (321) E.L.T. 192 (S.C.), that it came into force only on 06.08.2001 when it was offered for sale to the general public, it must be borne in mind that there is no constitutional or statutory prescription on the effect of the law pronounced by a Division Bench, in relation to a case raising the same point subsequently before a Division Bench of the same or smaller number of Judges, and the point is governed entirely by the practice of Courts in India, sanctified by repeated affirmation for over a century. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that this Rule has been evolved, in order to promote consistency and certainty in the development of the law, and its contemporary status that the statement of the law by a Division Bench is considered binding on a Division Bench of the sa .....

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..... n the very same Customs Notification No.36/2001 was held to have come into force on or after 06.08.2001, and not on the date of its publication as reflected in the Gazette as 03.08.2001. Article 141 of the Constitution stipulates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. (Director of Settlements v. M.R.Appa Rao (2002) 4 SCC 638 ). The law which is binding under Article 141 would, therefore, extend to all observations on the points raised and decided by the Court in a given case. The decision, in a judgment of the Supreme Court, cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court (Ballabhadas Mathurdas Lakhani v. Municipal Committee, Malkapur AIR 1970 SC 1002 ). The decisions of the Supreme Court are of significance not merely because they constitute an adjudication of the rights of the parties and resolve the disputes between them, but also because, in doing so, they embody a declaration of law operating as a binding principle in future cases. The law decl .....

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..... 972) 1 All ER 801). A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or seeks to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (Narinder Singh v. Surjit Singh (1984)2 SCC 402 ; Kausalya Devi Bogra (1984) 2 SCC 324; M.R. Apparao(2002) 4 SCC 638). The singular Constitutional role of the Supreme Court under the Constitution, and correspondingly of the assisting role of all authorities - civil or judicial in the territory of India - towards it, mandates the High Court, which is one such judicial authority covered under Article 144 of the Constitution, to act in aid of the Supreme Court. The order of the Supreme Court is a judicial order, and is otherwise enforceable throughout the territory of India under Article 142 of the Constitution. The High Court is bound to come in aid of the Supreme Court in having its order worked out. While the High Court is independent, and is a co-equal institution, the Constitutional scheme and judicial discipline requires that the High Court should give due regard to the orders of the Supreme Court which are binding on all Courts within the territory .....

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