TMI Blog2020 (6) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms notification would be made operative even before the EXIM Policy came into being. If the law maker, by way of amendment, introduces anything which was left out or omitted by mistake in the original provision, then such amendment may operate retrospectively with effect from the date of the original provision - The relevant amendment in the customs notification has not been made for rectification of any such mistake. Two additional import items were introduced to give effect to the amendment of the EXIM Policy. The inclusion of the import items namely, textile and chemical sectors , if construed to be operative retrospectively, then the same would entail refund of all customs duties already levied under the ten per cent customs duty regime. Such a consequence was never the intendment of the amendment. Appeal allowed. - APO No. 404 of 2010 and APO No. 405 of 2010In W.P No. 1466 of 2004 - - - Dated:- 19-6-2020 - HON BLE JUSTICE SANJIB BANERJEE AND HON BLE JUSTICE KAUSIK CHANDA For the Appellants : Mr. Vipul Kundalia, Adv. (In APO No. 404 of 2010) Mr. Siddharth Lahiri, Adv. For the Appellants : Mr. Somnath Ganguly, Adv. (In APO No. 405 of 2010) Ms. Aishwarya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce, Government of India by a notification No. 1(RE-99)/1997- 2002 effective from 1st April, 1999 allowing importation of textile machinery as capital goods for zero customs duty, subject to export obligation. 11. Ministry of Finance (Department of Revenue) issued the corresponding notification No. 122/99-Cus. dated November 04, 1999. In other words, though the Ministry of Commerce allowed importation of textile machinery for zero customs duty with effect from 1st April, 1999, the Ministry of Finance issued the corresponding exemption notification under Section 25 of the Customs Act only on November 04, 1999. 12. In view of the amended EXIM Policy, the company made several representations before the Director General of Foreign Trade for converting the said ten per cent customs duty licence to zero duty licence. The Director General of Foreign Trade, however, turned down such prayers. 13. The company, under protest, paid ten per cent customs duty, and the said goods were released by the customs authorities in the port at Kolkata. The company, thereafter, claimed the benefit of the amended EXIM Policy and requested the customs authorities for refund of a sum of ₹ 12,44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for determination of customs tariff. The company suggests that the EXIM Policy was amended with effect from 1st April, 1999 and the bills of entry were filed only in the month of August. Therefore, in terms of provision of Section 46 read with Section 15 of the Customs Act, 1962, the company is entitled to the benefit of zero customs duty. The company, in this regard, refers to the judgment reported at AIR 1989 SC 2054 (M/s. Bharat Surfactants Pvt. Ltd. vs Union of India). 21. It has, further, been argued that the company cannot be deprived of the amended EXIM Policy for belated issuance of the corresponding customs notification. 22. It has also been contended that the customs notification dated November 04, 1999, should be read as retrospective and any contrary interpretation would defeat the very object of extending benefits of zero customs duty conferred by the amended EXIM Policy. To buttress the argument, the company places reliance upon the judgment reported at AIR 2005 Supreme Court 3685 (Government of India Versus- Indian Tobacco Association). 23. Therefore, the question which is essentially posed for consideration in these appeals is whether the imported g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Foreign Trade (Development and Regulation) Act, 1992 or any notification or policy promulgated thereunder. 30. It has already been noticed that the customs notification issued under Section 25 of the Customs Act, 1962 had no manner of application to the relevant import. The date of filing of bill of entry was, therefore, wholly irrelevant. 31. The facts in Bharat Surfactants (Supra) are totally distinguishable from the present case. In the said case the bill of entry was filed before the arrival of goods in the relevant port and it was held by the Supreme Court that the relevant date for applicable rate would be the date of filing of the bill of entry. Here, the date of filing of bill of entry is not a relevant factor at all. 32. In view of the discussion above, the question whether the relevant customs notification was retrospective in nature becomes academic. However, since the Director General of Foreign Trade had declined to grant relief to the company holding that the said notification had no retrospective effect and the learned Single Judge, on the other hand, allowed the writ petition taking a contrary view, the said issue is also addressed. 33. The afores ..... X X X X Extracts X X X X X X X X Extracts X X X X
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