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TMI Blog2016 (2) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... was berthed on 17th September, 2015. Under Section 15 of the Customs Act, the Bills of Entry are deemed to have been presented on the date of entry inwards of the vessel. Therefore, there is no dispute that the bills of entry are deemed to have been lodged on 17th September, 2015. 4. The duty payable in the aforesaid case is 45% of the invoice value. However, there was an exemption granted by the Central Government in exercise of powers under Section 25 of the Customs Act by reason whereof prior to 17th September, 2015, the duty payable was 7.5%. On 17th September, 2015 the exemption was reduced and the duty payable was fixed at 12.5%. The writ petitioner is interested in contending that the applicable rate of duty in this case is 7.5% whereas Revenue is interested in contending that the duty payable by the writ petitioner is 12.5%. The writ petition was filed praying for a writ in the nature of mandamus commanding the respondent authorities to clear the goods upon payment of duty @ 7.5% and further commanding them not to insist upon payment of duty @ 12.5%. Prayers in the nature of certiorari quashing the assessment and reassessment orders etc. were also made which have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He, therefore, submitted that the order dated 21st January, 2016 was not carried out. He concluded by saying that since unimpeachable evidence, according to him, is that the notification was offered for sale only on 21st September, 2015 the necessary conclusion has to be that the notification came into effect on 21st September, 2015. 10. He submitted that reference in this regard may also be made to sub-section (5) of Section 25 which also speaks of the necessity of the notification being offered for sale before the same can become operative. According to him, the affidavit used by the Union of India referred to hereinabove did not disclose any evidence. 11. Mr. Rawal relied upon a judgment in the case of Param Industries Ltd. v. Union of India., reported in 2002 (150) E.L.T. 3 (Kar.). 12. He submitted that the judgment in the case of Param Industries Ltd. was affirmed by the Supreme Court of India in Union of India v. Param Industries Ltd., reported in 2015 (321) E.L.T. 192 (S.C.). 13. Mr. Saraf, learned advocate, appearing for the Revenue submitted that the reading of sub-sections (4) and (5) of Section 25 and the consequent construction thereof put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable. (2A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2), insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette, at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be. (3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp;A reading of the Sub-section (4) as above may lead to the inference that every notification issued under sub-section (1) or sub-section (2A) shall come into force on the date of its issue by the Central Government for publication in the official gazette. This reading may appear to be slightly in conflict with sub-section (1), which provides that notification in the official gazette is required to grant the exemption. But this is not a conflict because the provision in sub-section (1) is qualified to that extent by sub-section (4). The notification comes into force when it is issued for publication in the official gazette. It is not dependent upon any further act, or activity. The mandate that the notification shall also be published and offered for sale by the Directorate of Publicity and Public Relation by the Board on the date of its issue by the Central Government is a follow up action. But nonetheless that follow up action has to be performed on the date of issue of the notification by the Central Government. A question was raised, whether this follow up action was taken? The answer to that would appear from the affidavit affirmed by Sri Souvik Sinha on 28th January, 2016 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (2A) shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relation of the Board was duly complied with. The learned Trial Court held in this regard as follows :- "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 no reason to disbelieve the Union, nor has anything been shown by the petitioners to detract therefrom." 26. A distinction between publication in the official gazette appearing in clause (a) of sub-section (4) and the mandate appearing in clause (b) of sub-section (4) for publication and offer for sale by the Directorate of Publicity and Public Relation of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (a) "foreign currency" and "Indian currency" have the meanings respectively assigned to them in clause (m) and clause (q) of Section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999)." 31. Ordinarily, under sub-section (1) of Section 14 the transaction value is the basis unless the parties are related to each other. There is, however, provision in sub-section (1) of Section 14 for addition to the transaction value any amount paid or payable for costs and services etc. But sub-section (2) is a departure from sub-section (1). The transaction value provided for in sub-section (1) is subject to tariff value to be fixed by the Board under sub-section (2). Such a notification under Section 14(2) was issued on 3rd August, 2001 which was a Friday. The following Saturday and Sunday were holidays. The notification was issued on 3rd August, 2001 at 11.44 P.M. 32. Mr. Saraf, contends that in the case of Param Industries Ltd. (supra) the Hon'ble Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance of sub-sections (4) and (5) of Section 25 for the purpose of construing the provision of Section 14 of the Customs Act. Section 14 and Section 25 provide for two different situations and two different mechanisms have been provided. Section 25 could not have been resorted to in interpreting Section 14 as was done by the Karnataka High Court. It is not, however necessary for us to go into that question because the Apex Court in the case of Union of India v. Param Industries Ltd. (supra) did not go into the same as would appear from Paragraph 2 of the report which reads as follows :- "There was some dispute as to whether the notification was published on 3-8-2011 itself or it was published on a later date. However, from the record, it gets revealed that the notification was sent for publication after the normal office hours, i.e. much after 5 p.m. on 3-8-2001. It was almost at the midnight, may be few minutes before 12 in the night. Even if it is to be treated as notification having been published on 3-8-2001 itself, i.e., just before the midnight, an issue has arisen as to whether it could be made effective qua the goods which were already cleared during the day time on the b ..... 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