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TMI Blog2020 (7) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... Goods and Service Tax (IGST) for clearance of the subject goods, which the respondent department claimed on the strength of the notification dated 1.3.2018. 3. It is the contention of the petitioner that the said notification dated 1.3.2018 was updated on 2.3.2018 and came to be published in the Official Gazette on 6.3.2018. The petitioner contends that the customs duty, as was applicable, had already been paid along with the IGST on 1.3.2018 and 5.3.2018 respectively and, therefore, the enhanced amount realised from the petitioner is unlawful. 4. The petitioner has come up with a case that if the notification was published only on 6.3.2018, the same cannot have any application on the transaction of the petitioner carried out prior to the said date, and the respondents cannot compel the petitioner to pay any enhanced rate of duty. The respondents, however, reassessed the customs duty on the petitioner and raised an additional demand, which the petitioner deposited under protest, including the differential IGST amount. It is only on payment of the same that the imported goods were released to the petitioner. In effect, the contention is that the enhancement of duty to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon". Whereas, Sub-Section (4) of Section 25, while declaring the date of enforcement of such notification, prescribes that it shall come into force on the date of its issuance by the Central Government for publication in the Official Gazette. Sub-Section (4) of Section 25 is quoted hereunder for ready reference: "Sec.25(4):Every notification issued under subsection (1) or sub-section (2A) shall, unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette". 2. The argument is that Sub-Section (4), even though speaks about the same notification that is to be issued under Sub-Section (1) to be notified in the Official Gazette, defines the date of enforcement as the date of issue itself meaning thereby that its enforceability is dependent upon the date of issuance and not the date of its publication in the Official Gazette. 3. The contention of the petitioner is that unless the notification is published in the Official G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhra Pradesh in W.P.Nos.4533 and 4534 of 2019 dated 28.09.2019, filed by the present petitioner itself. It is therefore contended that the aforesaid ratio of the judgment, whereby, the said provision occurring in Section 25(4) of the Act to be declared as arbitrary and inconsistent to Section 25(1) of the Customs Act, should be adopted and the same relief be extended in the present writ petition. 9. Learned counsel for the respondents / Union of India and its authorities prays that there are other dimensions to the aforesaid arguments and therefore, in order to dissuade the Bench from accepting the ratio of the High Court of Andhra Pradesh, the learned counsel may be granted some time to assist the Court on the arguments so advanced. List on 16.12.2019." 9. When the matter was again taken up, the following order came to be passed on 5.3.2020: "We have heard learned counsel for the petitioner and learned counsel for the respondents. We have passed the following order after having heard learned counsel for the parties on 26.11.2019:- (Already quoted above) 2. Today, learned counsel for the respondents has again sought time on the ground that there is a likelihood of Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form." 31. In terms of the Section 8 of the IT Act, the following Office Memorandum (OM) was issued by the PSP Division in the Ministry of Urban Development on 30th September, 2015: "No. O-17022/1/2015-PSP-I Government of India Ministry of Urban Development (PSP Division) Nirman Bhawan, New Delhi Dated: 30th September, 2015 OFFICE MEMORANDUM Subject: E-publishing of Government of India Gazette Notification Discontinuing of the practice of physical printing. In compliance with the provisions of Section 8 of the Information Technology Act, 2000, it has been decided in consultation with Department of Legal Affairs to switch over to exclusive e- publishing of the Government of India Gazette Notification on its official website with effect from 01.10.2015 and to do away with the physical printing of Gazette Notification. The date of publishing shall be the date of epublication on official website by way of electronic gazette in respect of Gazette Notifications. The Gazette Notification ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Notification herein, or show cause by filing a counter affidavit within three weeks from today. 7. In the event, no counter affidavit is filed nor any information tendered with regard to filing of Special Leave Petition, this Court will proceed further to pass final orders. List the matter on 01.04.2020." The Court had made it clear to the respondents to take a final call in the matter as it has been delayed for more than 4/5 months in spite of the fact that the petitioner had cited judgments in its favour entitling it to receive refund of the enhanced amount of duty paid, which had been incorrectly realized by the respondents. 10. The matter was again listed on 5.6.2020, when we passed the following order: "A prayer has been made by learned counsel for the respondents that even though time had been granted by this Court on 05.03.2020, on account of intervening spread of the Corona Virus, appropriate instructions with regard to filing of any Special Leave Petition have not yet been received. 2. The learned counsel can be granted this indulgence on account of the restricted functioning of the Courts including the Hon'ble Apex Court, but, in view of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paragraphs (24) to (33) of the said judgment are extracted herein under: "24. It is averred, in the writ petition, that the above Notifications and Public Notice were published, in the Official Gazette, only on 28th August, 2017. The petitioners would seek to contend that the impugned Notification Nos. 24/2015-2020 and 25/2015-2020, both dated 25th August, 2017, became effective only consequent on their publication in the Official Gazette. The gold coins in questions having been imported prior thereto, inasmuch as they had left the country of dispatch on 25th August, 2017, Notification Nos. 24 and 25, both dated 25th August, 2017 and Public Notice No. 20, also dated 25th August, 2017, having been published in the Official Gazette three days thereafter, on 28th August, 2017, could not apply to them. 25. In order to buttress their submissions that the impugned Notification Nos. 24 and 25, dated 25th August, 2017 were published in the Official Gazette "electronically" only on 28th August, 2017, the petitioners have filed, with the writ petitions, electronic copies of the Gazette where, at the close of the notification, the following endorsement appears: "Rakesh Sukul : Digitall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way with the physical printing of Gazette Notification. The date of publishing shall be the date of e-publication on official website by way of electronic gazette in respect of Gazette Notifications. The Gazette Notification can be accessed and downloaded/printed from the official e-Gazette website i.e. www.egazette.nic.in free of cost. All the Ministries and Departments are requested to give wide publicity to bring this to the notice of all attached & subordinate offices, PSU, etc., as well as various stakeholders including all private users. This issues with the approval of competent authority. Sd./- (Kailash Choudhary) Under Secretary to the Govt. of India" (Emphasis supplied) 32. The endorsement on the electronic copy of the Gazette, whereby the impugned Notification Nos. 24 and 25, dated 25th August, 2017, were notified, seen in juxtaposition with Section 8 of the IT Act, and of the OM dated 30th September, 2015 supra, of the Ministry of Urban Development, makes it clear that the impugned Notification Nos. 24 and 25, dated 25th August, 2017 were, in fact, electronically published in the Official Gazette only at or after 10:47 p.m. on 28th August, 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8 of the Income Tax Act, to avoid physical printing of Gazette notification to publish the same exclusively by electronic mode, so as to attribute knowledge to the public at large. The notification was signed by Rakesh Sukul on 6.3.2018 at 19:15:13 + 05'30'. When notification needs to be signed digitally and only when the notification was uploaded and published in the Official Gazette, the same is made available for public. Perhaps, to avoid such contingency to give effect to the notification on the date of publication, the Government of India amended sub-section (4) of Section 25 of Customs Act, 1962. But, sub-section (1) and sub-section (2- A) of Section 25 were not suitably amended and they remained as it is. Therefore, sub-sections (1), (2-A) and (4) of Section 25 are running contra to one another, creating confusion in the minds of public at large, atleast to the person who is dealing with the department. Thus, it is evident from the record that the notification was not signed atleast by the competent authority on the date of presentation of ex-bond bill of entry before the competent authority for release of imported goods for human consumption in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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