TMI Blog2020 (9) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... DIA [ 2019 (9) TMI 1374 - ANDHRA PRADESH HIGH COURT] , the petitioner and the Andhra Pradesh High Court after considering the submissions canvassed by both the sides has held as under for striking down Section 25(4) of the Customs Act declaring as arbitrary and contrary to Section 25(1)(2A) of the Customs Act, 1962 - In view of above judgment and order of the Andhra Pradesh High Court dealing with the same issue, we are of the opinion that the same should also apply to the cause of action within the territorial jurisdiction of this Court also so as to maintain consistency for application of the provision of the Customs Act, 1962, which is a Central Act. As held by the Supreme Court in case of KUSUM INGOTS ALLOYS LTD. VERSUS UNION OF INDIA [ 2004 (4) TMI 342 - SUPREME COURT] , the parliamentary legislation without receiving the consent of the President of India and published in a official gazette unless specifically excluded will apply to entire territory of India. If passing of the legislation gives rise to cause of action, the writ petition questioning the constitutionality thereof can be filed in any High Court of the country having requisite territorial jurisdiction and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al from 6th March 2018 only and not prior thereto. Facts of SCA No.11063 of 2018. 4. The petitioner is a limited company incorporated under the provisions of Companies Act, 1956 and is engaged in the business of solvent extraction, refining of edible oils, manufacture of soya foods products, import, export and trading of agri commodities (for short the subject goods ). The petitioner purchased Crude Palm Oil of edible grade in bulk on high seas sales basis from M/s. S. N. Overseas, Bathinda, Punjab vide High Seas Sale Agreements dated 8th February 2018. M/s. S. N. Overseas, imported said goods no.8 MT BRILLANTE VOY. NO. 1801 vide 5 bills of Lading dated 7th February 2018. M/s. S. N. Overseas raised 3 invoices dated 23rd February 2018 upon the petitioner pertaining to the aforesaid imported goods. 4.1 The petitioner filed three bills of entry dated 1st March 2018 under Section 46 of the Customs Act, 1962 (for short the Customs Act) seeking clearance of the said imported goods for home consumption so as to pay the custom duty as per Section 15(1)(a) of the Customs Act, which provides date for determination of rate of duty and tariff valuation of imported goods. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as amended in the year 2016, which provides that every notification issued under sub section 1 or sub section 2A of Section 25 shall unless and otherwise provided would come into force on the date of its issue by the Central Government for publication in the official gazette. 4.8 The petitioner has therefore, filed this petition with the following prayers. (A) The Hon'ble Court be pleased to declare and hold that Section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016 is arbitrary, illegal, ultravirus and unconstitutional and strike down the same accordingly. (B) The Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, direction or order while quashing and setting aside the Notification No: 29/2018Cus dated 1.3.2018 being illegal, arbitrary, ultravires and infringing the fundamental rights of the Petitioner to trade and otherwise bad in law (C) In alternate subject to what is stated above, this Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, direction or order that the Notification No. 29/2018Cus dated 1.3.2018 is effective and operational from 6.3.2018 only and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 20th November 2017. The Copy of the Notification digitally signed to be published in official Gazette is enclosed herewith the Note. 5.5 That the Notification No.87/2017Cus dated 17th November 2017 was digitally signed for being published in Official Gazette only on 20th November 2017. 5.6 That this was the reason that the effect of notification was also not given in RMS and EDI Bill of Entry at the time of assessment of the Bills of Entry no.4014924, 4015086 and 4032071. 5.7 That therefore, the petitioner vide letter dated 21st November 2017 and 27th November 2017 explained the issue to the Deputy Commissioner and requested the Bill of entry not be recalled and reassessed as per the higher Customs duty of 30%. Facts of SCA No.1919 of 2018 6. That the Petitioner had imported goods being edible oil on 17th November 2017 and had filed Bills of Entry no. 4032303, 4032304, 4032289, 4032290, 4031615, 4031635, 4031616 and 4031637 dated 16th November 2017 for home consumption. 6.1 That for Bills of Entry no. 4032303, 4032304, 4032289 and 4032290 dated 16th November 2017, the Petitioner had to make the duty payment @ 17.5% and for Bills of Entry no. 4031615, 4031 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty payment @ 17.5% by MEIS licenses/scripts vide Notification no. 50/2017Customs dated 30th June 2017. 7.2 That on 17th November 2017, the vessel was granted an entry inward and at 12:11 hrs. therefore, the date of Bills of Entry would be 17th November 2017 as per the proviso to Section 15 of Customs Act, 1962. 7.3 That further on 17th November 2017, at 12:11 hrs. the Risk Management System (RMS) assessed the said Bill of Entry @ 17.5% which was the applicable rate in the system as well. 7.4 That subsequently, vide notice dated 23rd November 2017 24th November 2017, the Deputy Commissioner of Customs (Grade. VII), Kandla informed that such Bills of Entry needs to be reassessed on the ground of issuance of Notification No. 87/2017Cus dated 17th November 2017. 7.5 That the new Notification No. 87/2017Cus dated 17th November 2017 was neither in existence nor released till 20th November 2017. The Copy of the Notification digitally signed to be published in official Gazette is enclosed herewith the Note. 7.6 That the Notification No. 87/2017Cus dated 17th November 2017 was digitally signed for being published in Official Gazette only on 20th November 2017. 7.7 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87/2017Cus (purportedly dated 17th November 2017) issued under Section 25(1) of the Customs Act, 1962. To the best of the petitioner s information, the said Notification was uploaded on the website of Central Board of Excise and Customs i.e. www.cbec.gov.in only on 18th November 2017 around 01:30 hours and was published in the Official Gazette on 20th November 2017 at 11:56 hours. It is pertinent to mention here that the said Notification which was uploaded on website of Central Board of Excise and Customs as stated above had remarks TO BE PUBLISHED IN THE GAZETTE OF INDIA . Further, the said Notification was published electronically in the Official Gazette of India only on 20th November 2017 at 11:56 hours as is evident from the digital signature thereon and petitioner has placed on record at pages 4648 an electronic copy of the Gazette where at the end of the subject Notification the following endorsement appears: ALOK KUMAR Date: 2017:11:20 Digitally signed by ALOK KUMAR 11:56:05 + 05 30 Therefore, it is evident that the subject notification has no application in the facts of the instant case. 8.5 Petitioner pursued the matter with the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pg 42) in favour of the Petitioner in regard to the subject imported goods. 9.2 Out of the aforesaid imported quantity of 3060 Mts of the subject goods, Petitioner sold 1750 Mts of the subject goods on High Seas Sale basis covered by Bills of Lading Nos. ED1 to ED7 all dated 30th September 2017. Thereafter Petitioner, being owner of balance 1310 Mts of the subject goods, as per aforesaid Bills of Lading Nos. ED8 ED9 both dated 30th September 2017 and aforesaid Bills of Lading Nos. ED10 to ED14 all dated 21st February 2017, filed Bill of Entry No. 4014015 dated 15th November 2017 under Section 46 of the Customs Act, 1962 seeking clearance of the subject goods for home consumption. 9.3 Subject goods merit classification under Customs Tariff Heading 15071000 of the Customs Tariff Act and Petitioner was required to pay duty @ 17.50% (basic customs duty). Accordingly Petitioner filed aforesaid Bill of Entry claiming classification and rate of duty as stated above. The subject goods were assessed accordingly on 15th November 2017 and duty was assessed @ 17.50. Duty structure in regard to the subject goods is 17.50% (basic customs duty) plus 3% (education cess). Accordingly duty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly. 9.7 It would be pertinent to mention here that revenue was not permitting clearance of the subject goods as requested by the Petitioner. However the subject goods were urgently needed by the Petitioner, amongst others, on account of its business commitments. Further on account of non clearance of the subject goods by revenue, Petitioner was incurring lot of expenses every day on various counts and the subject goods were losing utility and life by each passing day. In view of the aforesaid compelling circumstances, without prejudice to all its rights and contentions in law especially the right to contest the illegal demand of higher duty by the revenue as stated above, Petitioner wrote Letters dated 27th November 2017 (pg 63) and 28th November 2017 (pg 64), to the department under acknowledgment submitting that in view of the compelling circumstances Petitioner will deposit the higher duty under 'Protest and further made request that the subject goods may be cleared at the earliest. 9.8 In view of the above, the subject Bill of Entry dated 15th November 2017 was reassessed by the revenue on 1st December 2017 while demanding further amount of ₹ 99,83,741/( sum to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhra Pradesh High Court at Amaravati in case of the petitioner in SCA no.11063 of 2018 for the same issue whereby the Court allowed the writ petitions and ordered to strikedown and declare amended Section 25(4) of Customs Act as arbitrary and contrary to Section 25(1) of the Customs Act and directed the revenue to repay the access amount paid by the petitioner therein with interest from the date of deposit till its date of repayment. 12. It was submitted that provisions of amended Section25( 4) of the Customs Act are also considered by the Delhi High Court in case of M. D. Overseas Ltd., and others vs. Union of India others in judgment and order dated 15th October 2019 in context of Section3 of the Foreign Trade (Development and Regulation) Act, 1992, which has the same language as that of Section 25(1) of the Customs Act. The Court while allowing the petition held amongst others that the subject notification though dated 25th August 2017 had been digitally signed on 28th August 2017 and had been electronically published in the official gazette on 28th August 2017, the same would not apply to the subject bills of entry dated 25th August 2017. 13. Reliance was also placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes in three different States, i.e., Gujarat, Maharashtra and Tamil Nadu in respect of the same product. The petitionerCompany is a manufacturer of agricultural knapsack sprayer engine which is used as a pure/component in mechanical appliances for spraying pesticides in fields and farms. The product is being classified under Heading No.84.24 in Maharashtra (manufacturerHigh Power Engineering Company Private Limited, Satara) and in Tamil Nadu (manufacturerGreaves Limited, Chennai) whereas in Gujarat it is classified under Heading No.84,07 in the petitioners' case by the Assistant Commissioner of Central Excise at Valsad under the Commissionerate of Central Excise, Valsad. (2) Kusum Ingots Alloys Ltd. Vs. UOI 2004 (168) ELT 3 (SC) 21. A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan, AIR 1951 SC 467, the Supreme Court held: 8. In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. (c) In the case of Union of India v. Param Industries (which arose in the context of Section 25 of the Customs Act as it stood prior to 14.5.2016), the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intrinsically connected to each other and cannot be read in isolation. On plain reading of subsection (4)(a), it can be inferred that the notification comes into force from the date it is issued by the Central Government for publication in the Official Gazette; but it is equally obligatory that the same shall also be published and offered for sale on the date of issue by the Directorate of Publicity and Public Relations of the Board. Thus, the legislature had envisaged a common date of coming into force the notification and date of publication and sale, and hence, the expression the date of issue is required to be construed recording, viz. when the notification is issued and is published and offered for sale. Moreover, the Supreme Court in the case of Union of India v. Param Industries (supra) has agreed with the view adopted by the Karnataka High Court whereby it has been held 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 Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Central Act made before the commencement of the Constitution of the GovernorGeneral, and (b) in the case of an Act of Parliament, of the President (3) Unless the contrary is expressed, a [Central Act] or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement 15. The term of commencement used in last line of Section 5(3) requires further clarification. The same is defined in Section 3(13) of the General Clauses Act thusly: Commencement used with reference to an Act or regulation, shall mean the day on which the Act or Regulation comes into force; As section 25(4) lays down that the date of coming into force shall be the date of issue by the Central Government for publication in the official gazette. So the date of commencement shall also be the date of issue of concerned notification by the Central Government for publication in the Official gazette as per the above definition of the term commencement, and not the date on which such notification is published in the official gazette. 16. A combined reading of the stipulations reproduced above entails that thetime of coming into opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x problems which do not admit of solution through any doctrine... There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid . GROUNDS AVAILABLE TO CHALLENGE STATUTE: 21. A law made by the parliament or the legislature can be struck down by the courts on two grounds alone viz. (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part II of the constitution or of any other constitutional provision. There is no third ground. No enactment can be struck down by just saying that it is arbitrary or unreasonable. An enactment cannot be struck down on the ground that the court thinks it to be unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. 22. This proposition of law has been clearly enunciated by a Constitutional Bench of the Hon'ble Supreme Court in K.T. Plantation (P)Ltd. v. State of Karnataka, (2011) 9 SCC The relevant paragraphs of the judgment are from 198 upto the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to strike down a statute because such an approach would always be subjective, not the will of the people, because there is always a presumption of constitutionality for a statute. 23. LEGISLATIVE COMPETENCE: It is submitted that the legislative competence of Union of India for enacting any taxing statute cannot be doubted in view of the provisions of Article 246 and 248 read with schedule VII, List I, Entry No.97. ARTICLE 246: Subject matter of laws made by Parliament and by the Legislatures of States (1) Notwithstanding anything in Cls. (2) and (3). Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List ). (2) ...NR (3) ..NR (4) ...NR SCHEDULE VII Parliament has exclusive powers to make laws in respect of matters enumerated in List I in VII schedule. Entry 97 in Schedule VII List Any other matter not enumerated in List Il or List II including any tax not mentioned in either of those lists. ARTICLE 248: Residuary powers of legislation Subject to article 246A, Parliament has exclusive power to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ground of it being harsh or unreasonable. It is a settled principle that in the matters of taxation, the legislature is allowed to pick choose geographical areas, objects, persons, methods of tax and rates of tax. 26. It is further submitted that the Hon'ble Supreme Court has in its judgment reported in 1993 (3) SCC 677 in case of Venkateshwara Theatre V State of A.P. observed as under:... 20. Article 14 enjoins the State not to deny to any person equality before the law or the equal protection of the laws. The phrase equality before the law contains the declaration of equality of the civil rights of all persons within the territories of India. It is a basic principle of republicanism. The phrase equal protection of laws is adopted from the Fourteenth Amendment to the U.S. Constitution. The right conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Since the State, in exercise of its government power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation... 28. It is further submitted that judgments relied upon by the petitioner in the petition are not in respect of constitutional validity of section 25(4) of Customs Act, 1962. Furthermore those judgments were delivered in respect of unamended section 25(4) of the act and those judgments were of the nature of interrupting the unamended section 25(4)of the Act and hence the same cannot be relied upon and can be distinguished easily. 29. In view of above coupled with the fact that the petitioner could not produce anything concrete about how the amended section 25(4) of the Customs Act, 1962 can be said to be ultra vires or unconstitutional and hence the petition deserves to be dismissed. 30. I respectfully say and submit that considering the above submissions, it is clear that the impugned provisions are constitutionally valid and hence the petition deserves to be dismissed. 16. Learned counsels for the respondents in addition to the above, relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s Office and the same is offered by way of sale to public by photocopying the same on the same date, in this case 17.09.2015 across the sale counter of DPPR located at Room G44, Ground Floor, C.R. Building, I.P. Estate, New Delhi110 109. I state that the above Notification was received by DPPR on 17.09.2015. Photocopy of the said Notification is annexed hereto and marked as annexure R1. I state that the according to Section 25(4) (b) of the Customs Act, 1962 the said Notification was published on 17.09.2015 and offered for sale on 17.09.2015 by the Directorate of Publicity and Public Relations of the Board, New Delhi. However, on17.09.2015 no person came to the sale counter of DPPR to purchase the above said Notification. 24. The contents of the aforesaid affidavit have remained uncontroverted. 25. Mr. Saraf is right in contending that under Order 8 Rule 5 of the Code of Civil Procedure every allegation of fact in a plaint or a pleading if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant or the respondent as the case may be shall be taken to be admitted except as against a person under dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a notification by the Central Government for publication in the official gazette is enough for the notification to come into force but the follow up action is equally necessary which is to be done by Directorate of Publicity and Public Relations which is a wing of the Central Board of Excise constituted under the Central Board of Revenue Act, 1963. 29. Mr. Rawal was at pains to show that the copy of the official gazette was not available before 21 September, 2015 as would appear from the submissions recorded herein above. Copy of the official gazette may or may not have been available before 21 September, 2015. Nothing really turns on that. Once the fact that the notification was also published and offered for sale on 17th September, 2015 by the Directorate of Publicity and Public Relation of the Board is established there is no scope for any further controversy. 30. We may now notice the judgment in the case of Param Industries Ltd. (Supra) relied upon by Mr. Rawal. The question for consideration before the Karnataka High Court was did the notification under section 14(2) of the Customs Act come into effect on 3rd August, 2001? Or did the same come into effect on 7th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is true that Gazette notification is admissible 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 contrary is proved. Despite directions the respondents have not chosen to produce the records to show that averment made in the Writ Petitions is false and that notification was published on 3.8.2001 itself. 34. He contended that under Section 81 of the Evidence Act there is a presumption in favour of a gazette which reads as follows: 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.The Court shall presume the genuineness of every document purporting to be the London Gazette or 1[any Official Gazette, or the Government Gazette] of any colony, dependency or possession of the British Crown, or to be a newspaper or Journal, or to be a copy of a private Act of Parliament 2[of the United Kingdom] printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roverted to show that the notification was duly published in the official gazette on 17th September, 2015 and the notification was also offered for sale on 17th September, 2015 by the Directorate for Publicity and Public Relation of the board. 40. Even if the two conditions are deemed to be mandatory there is indeed evidence to show that both of them were duly complied with. The official gazette dated 17th September, 2015 was produced before us by Mr. Saraf. As regards the other condition, we have indicated above that the same was duly complied with. 41. We are unable to accept the submission of Mr. Rawal that both Subsection (4) and (5) have to be read together. The Subsection (5) of Section 25 deals with a situation in which the notification has been issued in advance and is intended to become operative at a future date. 42. For the aforesaid reasons, we find no merit in the appeal. The appeal is dismissed and the question formulated is answered by holding that the notification came into force on 17th September, 2015. 17. Learned standing counsels for the respondents further submitted that the issue of validity of Section25( 4) is now pending before the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tte. The purport of subsections (1), (2A) and (4) of Section 25 are inconsistent with one another. In those circumstances, in view of the inconsistency between subsections (1), (2A) and (4), introduced by Notification 28 of 2018, has to be struck down. Scope of interpretation of charging or exempting sections of tax laws: The general principles of interpretation cannot be made applicable for interpretation of taxing statute, more particularly, when exemption clauses or charging clauses are to be interpreted, it must be construed strictly. There is vast difference in interpretation of provisions of taxing statute, more particularly, charging and exempting sections in taxing statutes and other legislations. The principles for interpretation of charging sections and exemption in tax laws are laid down in various judgments. But, there is difference of opinion as to the benefit to be given in the event of any ambiguity in the provisions of the Act. In Innamuri Gopalam and Maddala Nagendrudu v. State of A.P, the Apex Court had an occasion to deal with the exemption clause and the exemption was denied to the assessee on the ground that the intention of the notification w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification, i.e., by the plain terms of the exemption. Some of the provisions of an exemption notification may be directory in nature and some are of mandatory in nature. A distinction between provisions of statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. The principles as regard construction of an exemption notification are no longer res integra. Whereas the eligibility clause in relation to an exemption notification is given strict meaning where for the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed literally. In the recent judgment of the Supreme Court in Commissioner of Customs (Import), Mumbai v. M/s. Dilip Kumar and Company12, the Larger Bench of the Apex Court consisting of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ette. Vires of a provision in the statute can be challenged on limited grounds only when the amended provision is totally inconsistent to the other provisions in the Act or if the amended provision nullifies other provision in the Act or whether the amended provision is contrary to the fundamental right or it is arbitrary or capricious. The Government has to keep in mind that the amended provisions shall never be contrary to other provisions of the Act, while enacting such law by amending the existing provision. Learned counsel for the petitioner contended that subsection (4) of Section 25 is contrary to subsections (1) (2A) of the Act and the later provision which was amended by Act 28 of 2018 is to be struck down as arbitrary and in support of his contention, learned counsel placed reliance on the judgment of the Supreme Court in Union of India v. Ganesh Raj Bhojraj (referred supra). Earlier, the Central Government while exercising power conferred on the government, amended Section 25 by enhancing the basic duty of 25% on the goods exempted wholly by Notification No. 129 of 1976 dated 02.08.1976 even though not made available to public at large, the Court concluded that, only o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders, rules or byelaws so 28[issued]. When the rule prescribed specific procedure to be followed, the Central Government has to follow such rules and issue notifications. In the instant case, Section 25(1), (2A) of the Act mandates issue of notification in the official gazette, whereas, subsection (4) of Section 25 says that notification is deemed to have been came into force when it was issued by the Central Government for publication in the Gazette. In State of Maharashtra v. Mayer Hanse George13, the Apex Court observed that, there would be no question of individual service of a general notification on every member of the public and all that the subordinate law making body can or need do, would be to publish it in such a manner that persons can, if they are interested, acquaint themselves with its content. In Pankaj Jain Agencies vs. Union of India (UOI) and Ors14, the Supreme Court while relying on the judgment in State of Maharashtra v. Mayer Hanse George (referred supra), held that, The Notification was duly published in the official gazette and thus became operative and enforceable. We, therefore, see no substance in the contention that notwithstanding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied to the present facts of the case, consequently, the contention of the learned counsel for the respondents is hereby rejected. Another identical question came up for consideration before Gujarat High Court in Union of India v. M/s M.D. Overseas Limited (referred supra), wherein the Division Bench of Gujarat High Court held that, when notification was published on subsequent day, demanding the importer to deposit the differential customs duty with interest is illegal and the same was quashed. The question before Gujarat High Court is almost identical to the question involved in the present case. However, the judgment of Gujarat High Court in Union of India v. M/s M.D. Overseas Limited (referred supra) is challenged before the Supreme Court vide Diary No.29116 of 2017, the Apex Court while condoning delay, dismissed the appeal at the stage of admission, as they found no legal and valid ground for interference. If, these principles are applied to the present facts of the case, it is difficult to sustain the notification by Amendment Act 28 of 2018, which is impugned before this Court. In Union of India v. Kumho Petrochemicals Company Limited16, a similar dispute came up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Postamended by Notification 29 of 2018 Section 25(4) Every notification issued under subsection (1) or subsection (2A) 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 Every notification issued under subsection (1) or subsection (2A) shall, unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette. Section 25(1) of the Customs Act is not amended and according to Section 25(1) of the Customs Act, if the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (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. But, Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in the last resort. As observed by LORD EVERSHED, M.R: It is no doubt true that if two sections of an Act of Parliament are in truth irreconcilable, then prima facie the later will be preferred. But these are arguments of the last resort. The first duty of the Court must be, if the result is fairly possible, to give effect to the whole expression of the parliamentary intention (vide Eastbourne Corporation v. Fortes Limited19). In case in which two provisos were somewhat repugnant to each other, LORD MACMILLAN said: If proviso 2 is repugnant in any way to proviso 1, it must prevail for it stands last in the enactment and so to quote LORD TENTERDEN, C.J., speaks the last intention of the makers . The last word is with the respondent and must prevail (vide King v. Dominion Engineering Company Limited20). But, the rule that the later section should always be preferred in case it is irreconcilable with a prior section, seems somewhat doubtful and illogical for as JERVIES, C.J., observed during the course of arguments in a case: How can we say that one provision is repealed by the other when both received the Royal assent at the same time ? (vide Castrige v. Page21). In case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that the said Article applied to give protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has committed some criminal or quasicriminal act and that the physical restraint put upon an abducted person in process of recovering and taking into custody and delivery of the person to the custody of an officerincharge of the nearest camp under Section 4 of Abducted Persons (Recovery and Restoration) Act, 1949, is not arrest and detention within the meaning of Article 22(1) and (2). In holding so, S.R. DAS, J, observed: If two constructions are possible then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make wellestablished provision of existing law nugatory. (vide State of Punjab v. Ajaib Singh 29) and in construing Article 371D of the Constitution, the Supreme Court held that the words civil service of the State as used therein did not include the High Court staff and the subordinate judiciary, although the same words used in Article 311 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, contradiction and conflict between two provisions of the section i.e. subsections (1), (2A) and (4) of Section 25 of the Act. We have extracted the preamended and postamended provisions of Section 25(4) and even Section 14(2) also made it mandatory for the purpose of Customs Act, 1975 or any other law for the time being in force. Even according to Section 14(2) of the Customs Act, a gazette notification is mandatory fixing the tariff value for any class of import goods. Subsection (1) of Section 25 remains as it is, on the statute even after amendment to subsection (4) and the entire Section 25 of the Act deals with power to grant exemption from duty. The Central Government on satisfaction, issue any notification in the gazette, keeping in mind the public interest exempting generally either absolutely or subject to such conditions. Whereas, the language used in subsection (4) of the amended provision conveys a different meaning that the notifications issued under subsection (1) i.e for exemptions from duty is deemed to have come into force on the date of issue of such notification by the Central Government for publication in the Official Gazette. The issue of gazette notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to have been came into force when it was issued for publication. Thus, it creates any amount of inconvenience to the public. Therefore, to avoid such serious absurdity, confusion or friction, contradiction and conflict between two subsections of Section 25, we find that it is a fit case to declare Notification No.29/2018Cus dated 01.3.2018 as arbitrary and inconsistent with subsection (1) (2A) of Section 25, keeping in view the principles of statutory interpretation laid down by various Courts referred above. Even otherwise, a gazette notification was issued on 06.03.2018. Moreover, the competent officer signed on the notification affixing digital signature on 06.03.2018 only. Therefore, the notification is deemed to have come into force, at least on the date of signing on the notification by the competent authority and there is no notification in the eye of law and taking decision by the Legislature without signing on it by the competent authority does not amount to issue of notification in terms of the decision taken by the Legislature. On this ground also, the notification cannot be said to have came into force on the date of its issue for publication in the gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted or not. Hence, issue of notification in the official gazette is mandatory to grant exemption from payment of duty. According to Section 25(2A) of the Act, 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 subsection (1) or order under subsection (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 subsection (1) or order under subsection (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. But, for different reasons, Section 25(4) conveying different intention, it is a deeming provision, according to it, on the date of issue of notification by the Central Government for publication in the official gazette and deleted clause (b) of subsection (4) of Section 25 vide Act 28 of 2018. Publication of a notification in the final gazette is mandatory under Section 25(1) and Section 25(2A). The amendment to subsection (4) of Section 25 creates an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction and contradiction between two subsections of same section. Learned counsel for the petitioners placed reliance on several judgments of the Apex Court as to the interpretation of statutory provision, so also, the mandatory requirement of notification. The Division Bench of the Apex Court in B.K. Srinivasan v. State of Karnataka (referred supra) had an occasion to deal with the issue of publication of a public notice in the official gazette that the plan and regulations are permanently displayed and are available for inspection by the public with a view to invite comments from the public under Karnataka Town and Country Planning Act, 1961 and the Division Bench held as follows: There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious bad man' seeking to avoid the law, law must be known, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tariff rates (vide Section 14(2) and Section 15 of the Act), such notification is deemed to have come into force on the date of publication for the purpose of attributing knowledge to the public, including the subject goods or assesse under the Customs Act. Learned counsel for the petitioners has drawn attention of this Court to the judgment of the Apex Court in Union of India v. M/s. Param Industries Limited (referred supra), wherein the question before the Apex Court was as to the date of notification came into effect. But, this judgment is pertaining to the preamended provision of subsection (4) of Customs Act, since notification was not made available to the public offering for sale, as per subsection (4)(b) of Section 25 of the preamended Act, the Court held that the notification is deemed to have come into force with effect from the date of publication of the notification and availability or offering those notifications for sale. In the said judgment, Supreme Court referred the judgment in Harla v. The State of Rajasthan34, where the question was whether mere passing of a resolution without promulgation or publication in the gazette or other means to make the Act k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id for England. It is clear therefore that the mere enacting or signing of a Royal Proclamation is not enough. There must be publication before it can become law, and in England the nature of the publication has to be prescribed by an Act of Parliament. Even according to these principles certainly it is difficult to attribute knowledge to the public at large or at least to assesses who are dealing with the imported goods. When the notification was issued and kept in the desk by competent authorities without publication, giving effect to such notification, the same would amount to keeping the assessee in total darkness as to raising demand at the enhanced rate is arbitrary. Learned counsel for the petitioners also drawn attention of this Court in Union of India v. M/s M.D. Overseas Limited (referred supra), wherein the Division Bench of the Gujarat High Court while dealing with Section 25(4) (a) and (b) adverted to the law laid down in Union of India v. M/s. Param Industries Limited (referred supra) so also the Division Bench judgment of High Court of Judicature at Hyderabad in Agarwal Industries Limited v. Union of India35, the Court held that the date of publication for sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depart from the same by laying down additional requirement. It is further observed that, it is established practice that the publication in the official gazette, that is, Gazette of India is ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. 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. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year1998 by Bill No. 21 of 1998. The Apex Court also observed as follows: In our view, as noted above, in Pankaj Jain Agencies case [1994ECR28(SC)] the Court directly dealt with a similar contention and after relying upon the decision in the case of Mayer Hans George [1965]1SCR123 rejected the same. That decision is followed in I.T.C. Ltd. 1996(86)ELT477(SC) and other matters. Hence, it is difficult to agree that the decision in Pankaj Jain Agencies case was not helpful in deciding the question dealt with by the Court. Section 25 of the Customs Act empowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nflicted is a question which should in my opinion be left open to be gone into in an appropriate case. Nonavailability of Gazette carrying the notification may provide foundation for a defence plea of innocence where mens rea is an ingredient of offence committed by breach of notification. Where mens rea is not an ingredient, want of circulation of Gazette may still be a reason for leniency in punishment. These are the questions which need to be left open. The law declared by various courts is consistent and if a particular provision of law is amended in the enactment, notification in the official gazette for grant of exemption is mandatory and such exemption shall be given effect only from the date of publication in the official gazette. In the present case, an anomalous situation is created on account of amendment of subsection (4) of Section 25 of Customs Act, keeping the public or at least the assessee totally in dark who are concerned with such notification issued for publication is an arbitrary exercise of power by the Legislature and it would cause not only inconvenience to the assessee or the person concerned with such notification, it is nothing but absurdity creati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to interpretation of taxing statutes, it is clear that when the amended provision or any provision of the statute creates serious inconvenience, serious absurdity, confusion or friction, contradiction and conflict between its various provisions, the same is illegal and amendment of subsection (4) of Section 25 giving effect to the notification from the date of its issue for publication in the gazette is an arbitrary exercise of power by the Legislature and it is totally contrary to the purport of subsection (1) and subsection (2A) of Section 25 of the Act, which mandates publication of notification in the official gazette. Therefore, to avoid inconvenience, serious absurdity, confusion or friction, contradiction and conflict between various provisions, amended provision of subsection (4) of Section 25 which is enacted by arbitrary exercise of power by the Legislature, is liable to be struck down. The notification was published on 06.03.2018 which is impugned in these writ petitions, published electronically on 06.03.2018. In view of the decision taken by the Government of India in terms of Section 8 of the Income Tax Act, to avoid physical printing of gazett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is disentitled to claim relief under Article 226 of the Constitution of India. But, the said contention cannot be accepted for the simple reason that the appellate authority or tribunal cannot declare any provision in the statute as illegal or arbitrary. Therefore, we find no force in the argument of the learned counsel for the respondents and the same is rejected. In view of our foregoing discussion, Section 25(4) of the Customs Act is declared as arbitrary and contrary to Section 25(1) and (2A) of the Customs Act, 1962 and that the respondents are liable to repay the amount collected from the petitioners for clearance of import goods for home consumption beyond the original rate prevailing on the date of prior to date of publication of notification i.e. ₹ 2,88,16,200/with interest paid by the petitioner from the date of deposit till the date of payment. In the result, writ petitions are allowed. 20. In view of above judgment and order of the Andhra Pradesh High Court dealing with the same issue, we are of the opinion that the same should also apply to the cause of action within the territorial jurisdiction of this Court also so as to maintain consistency ..... X X X X Extracts X X X X X X X X Extracts X X X X
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