TMI Blog2020 (9) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of goods from Pakistan, it has prospective effect: the object and purpose is not to penalize Indian importers who had completed their imports, presented bills of entry for home consumption and had completed self-assessment in terms of the provisions of the Customs Act and the Regulations, prior to the issuance of the notification. Determination of the rate under Section 15 of the Customs Act 1962 - HELD THAT:- Section 15(1)(a) uses two expressions (i) the rate and valuation in force ; and (ii) on the date of the presentation of the bill of entry for home consumption under Section 46. The provisions of Section 15(1)(a) have to be read in conjunction with the provisions of Section 46 which are referred to in the former provision. Section 46 has incorporated a regime which encompasses the submission of the bill of entry for home consumption or warehousing in an electronic format, on the customs automated system in the manner which is prescribed. The Regulations of 2018 stipulate the manner in which the bill of entry has to be presented. The deeming fiction in Regulation 4(2) specifies when presentation of the bill of entry and selfassessment are complete. The rate of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bill of entry and the completion of self-assessment. Notification under Section 8A of the Customs Tariff Act - HELD THAT:- A notification which is issued in terms of the provisions of Sub-section (1) of Section 8A is akin to the exercise of a delegated legislative power. The Central government is empowered to issue a notification enhancing the rate of duty where it is satisfied that immediate action is necessary to increase the rate of customs duty on an article specified in the First schedule. The effect of the notification is to amend the First schedule to the Customs Tariff Act in respect of the import duty leviable on an article under Section 12 of the Customs Act. In issuing a notification under Sub-section (1) of Section 8A, the Central government exercises power as a delegate of the legislature. The issue now to be considered is whether the notification that was issued by the Central government under Section 8A(1) at 20:46:58 hours on 16 February 2019 took effect commencing from 0000 hours on that day. The rate of customs duty is determined on the date on which the bill of entry for home consumption is presented (Section 15). The presentation of the bill of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 47. The rate of duty which was applicable was crystallized at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 read with Regulation 4(2) of the Regulations of 2018. The power of reassessment under Section 17(4) could not have been exercised since this is not a case where there was an incorrect self-assessment of duty. The duty was correctly assessed at the time of self-assessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the notification bearing 5/2019 did not furnish a valid basis for re-assessment. Appeal dismissed. AS PER K.M. JOSEPH, J. Does a notification under Section 8A of the Customs Tariff Act, 1975 increasing the import duty published late in the evening of 16th Feb 2019, date back to the midnight of the previous day? Does a day include its fractions? - HELD THAT:- The Customs Act is a consolidating Act. It is intended, inter alia, to deal with the menace of smuggling. It contains various sanctions. It also provides for the levy of Customs duty on import and export. It is a law which provides revenue to the State. It is also an imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry under Section 46 and who carries out self-assessment, is duty-bound to pay such duty on the very same date. The consequence of failure is only the liability to pay interest under Section 47 besides disabling him from clearing the goods. It does not postpone the point of time at which the rate of duty is to be determined. As far as the Notification issued under Section 8A of the Tariff Act is concerned, the Notification would come into force on the date on which it is published in the Gazette. The question, however, which arises in this case is, as far as this Court is concerned, res integra, viz., whether having regard to the time at which it was published, whether Notification would come into force on 16.02.2019, by including the whole of the day or will it operate from the time of its publication, or whether the Notification is to be enforced only after excluding 16.02.2019 - The question would pointedly arise whether it was to have effect for the whole of the day, viz., 16.02.2019, which means, since the day 16.02.2019 was born, immediately after the midnight on 15.02.2019, does a day mean the first moment after the midnight? If that were the effect, what would be it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Entry for home consumption, self-assessment and payment of duty on the basis of the same and the rate being clearly fixed with reference to the particular point of time when the Bill of Entry is presented and there is a deemed presentation and even a deemed assessment, which is otherwise in order, and bearing in mind the principle that Section 8A does not provide power for increase of rate of duty with retrospective effect, the Notification must be treated as having coming into force not before its publication which is at 20:46:58 hrs. on 16.02.2019. This would necessarily mean that the Notification cannot be used to alter the rate of duty on the basis of which, in fact, there was presentation of Bill of Entry several hours ago, the self-assessment was done and what is more, the self-assessment was completed under Regulation 4(2) of the 2018 Regulations. There cannot be reassessment. The interpretation based on time of publication is in harmony with a view that accords respect for vested rights. Two inconsistent rates at the same point of time - HELD THAT:- There is no merit in the submission of the appellants in this regard. Once it is found that the notification upon pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 8A is published would indeed have relevance as already found. Appeal dismissed. - Civil Appeal No 3249 of 2020 (Arising out of SLP(C) No 3860 of 2020 - - - Dated:- 23-9-2020 - JUSTICE DR DHANANJAYA Y CHANDRACHUD, JUSTICE INDU MALHOTRA , JUSTICE K. M. JOSEPH For the Petitioner : Mr. B. Krishna Prasad, AOR For the Respondent : Ms. Sweta Rani, AORMr. Devashish Bharuka, AORMrs. Jaya Bharuka, Adv.Mr. Ravi Bharuka, Adv.Sarvshree, Adv.Mr. Justine George, Adv.Ms. Srishti Agarwal, Adv.Mr. P.S. Narsimha, Sr. Adv.Mr. Saurabh Kapoor, Adv.Mr. Parmatma Singh, AORMr. Mayank Jain, Adv.Mr. Madhur Jain, Adv.Mr. Rishabh Kapoor, Adv.Ms. Aditi Tripathi, Adv.Mr. K.K. Tyagi, Adv.Mr. Sarvam Ritam Khare, AOR Civil Appeal No 3250 of 2020 (Arising out of SLP (C) No.3861 of 2020) Civil Appeal No 3250 of 2020 (Arising out of SLP (C) No.3869 of 2020) Civil Appeal No 3252 of 2020 (Arising out of SLP (C) No.3867 of 2020) Civil Appeal No 3253 of 2020 (Arising out of SLP (C) No.3865 of 2020) 1 Civil Appeal No 3262 of 2020 (Arising out of SLP (C) No.5029 of 2020) Civil Appeal No 3265 of 2020 (Arising out of SLP (C) No.7059 of 2020) Civil Appeal No 3267 of 2020 (Arising out of SL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019, the Union Government issued a notification under Section 8A of the Customs Tariff Act 1975. The notification introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The precise time at which the notification was uploaded on the e-Gazette was 20:46:58 hours. Customs authorities at the land customs station at Attari sought to enforce the enhanced rate of duty on importers who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-Gazette. Their action led to a challenge before the High Court of Punjab and Haryana. The consignments of import covered a diverse range of goods, ranging from dry dates to cement. 3 On 26 August 2019, a Division Bench of the High Court of Punjab and Haryana allowed a batch of writ petitions under Article 226 of the Constitution. The High Court held that since the importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of selfassessment before the notification enhancing the rate of duty to 200 per cent was issued and uploaded, the enhanced r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an. On 16 February 2019, notification 5/2019 was issued by the Ministry of Finance in the Department of Revenue, in exercise of powers conferred by sub-section (1) of Section 8A of the Customs Tariff Act 1975. the Customs Tariff Act By this notification, a new tariff entry was introduced in Chapter 98 of Section XXI in the following terms: (1) (2) (3) (4) (5) 9806 00 00 All goods originating in or exported from the Islamic Republic of Pakistan - 200 % - . The notification contains a reference to the date (16 February 2019) and time (20:46:58) at which it was uploaded and published in the e-Gazette of the Government of India. Based on the enhancement in the rate of duty brought about by the notification, the customs authorities refused to release the goods which were assessed earlier. The bill of entry was recalled and reassessed on 20 February 2019 at 18:14 hours by levying customs duty at 200 per cent and IGST at 28 per cent, enhancing the duty from ₹ 73,342/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he import of goods from Pakistan), (i) they had placed orders; (ii) the goods had entered into the territory of India; (iii) the goods were fully or partially exempt from basic customs duties, but subject to IGST at the time of the filing of the bills of entry; (iv) the exporters from Pakistan received payment of the consideration on the basis of which the goods had been supplied; and (v) the object of the notification was to discourage imports from Pakistan and not to penalize Indian importers who had placed orders and had imported goods into India, bona fide relying on the policy which was applicable before the notification was issued in the late hours of the day. On the issues of law, it was urged that after the presentation of the bills of entry for home consumption, self-assessment and duty payment challans had been generated, it was not open to the customs authorities to levy the enhanced rate of duty which came into force later, from 20:46 hours on 16 February 2019. The application of notification 5/2019 would, it was urged, have retrospective effect since the bills of entry for home consumption had been filed electronically on the customs automated platform before the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SG are summarized below: A (i) Under Section 15 of the Customs Act, the date for the determination of the rate of duty and valuation of imported goods, in the case of goods which are entered for home consumption under Section 46, is the date on which the bill of entry in respect of the goods is presented. The expression on the date comprehends the entire period of 24 hours, in this case beginning at midnight on 16 February 2019; (ii) Section 15 does not make any reference to time and hence, irrespective of the point of time when a notification has been uploaded or published in the e-Gazette, the rate of duty leviable on imported goods cleared for home consumption is, by a legal fiction, the rate prevalent on the date of the presentation of the bill of entry; (iii) Section 15 should be interpreted in light of the rule of literal construction, and the law has to be applied as it is; and (iv) This case is not about the prospective or retrospective application of the Notification at issue. Rather, it is the simple intent of Parliament to consciously make the date on which the Notification is issued as the date for determination of the rate of duty (as applicable), which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is the rate prevalent on the date of the presentation of the bill of entry under section 46 of the Customs Act, where goods are cleared for home consumption; and (iii) The importers fulfilled the twin requirements of the goods having entered on 16 February 2019 and the bill of entry having been filed before 20:46 hours when notification 5/2019 was issued. The bills of entry had to be assessed to customs duty at the rate which was in existence prior to the publication of the notification. B (i) Notification 5/2019 having been published at 20:46:58 hours on 16 February 2019 it was never updated on the EDI portal; (ii) Notification 5/2019 would apply only to bills of entry for home consumption presented after 20:46:58 hours on 16 February 2019 or upon amendment in the online EDI portal of ICEGATE; (iii) A notification issued under the provisions of Section 8A (1) of the Customs Tariff Act cannot have a retrospective character; and (iv) Subordinate legislation is not retrospective unless the statute under which it has been framed, expressly or by necessary implication, imports retrospectivity. Subordinate legislation cannot always be equated as an Act of legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issuance of the notification. The submissions which were urged by Mr P S Narasimha have been supported by other learned counsel appearing for the respondents including Mr Devashish Bharuka, Ms Anjana Gusain, Mr Anant Agrawal, Ms Sishti Agarwal, Mr Parmatma Singh and Mr Saurabh Kapoor. 15 The rival submissions are considered below. F Determination of the rate under Section 15 of the Customs Act 1962 16 Chapter V of the Customs Act provides for the levy of and exemption from customs duties. Section 12(1), which is the charging provision, provides for the levy of duties of customs on goods imported into, or exported from India at the rates specified by the Customs Tariff Act or, in any other law for the time being in force. Section 15(1) is extracted below: 15. Date for determination of rate of duty and tariff valuation of imported goods.- (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order referred to in clause (c) may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria. For goods which are cleared from a warehouse under Section 68, clause (b) of Section 15 (1) provides that the rate of duty and valuation are those in force on the date on which a bill of entry for home consumption is presented under Section 68. In the case of other goods, it is the date of the payment of duty which determines the rate of duty under clause (c) of Section 15(1). The proviso to Section 15 (1) contemplates a situation where a bill of entry has been presented before the date of the entry inwards of the vessel or the arrival of the aircraft or vehicle through which the goods are imported. Under the proviso to Section 46(3), a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vehicle by which the goods have been shipped for importation into India. Dealing with such a situation, the proviso to Section 15(1) states that if a bill of entry has been presented prior to the date of the entry inwards of the vessel or the arrival of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) The importer shall present the bill of entry under subsection (1) before the end of the next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing: Provided that a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India: Provided further that where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed. (4) The importer while presenting a bill of entry shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries made under section 46 or section 50 and the self-assessment of goods referred to in sub-section (1)] and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary. Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. (3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. (4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods .. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation furnished under sub-section (3); but if it is found subsequently on examination or testing of the goods or otherwise that any statement in such entry or document or any information so furnished is not true in respect of any matter relevant to the assessment, the goods may, without prejudice to any other action which may be taken under this Act, be re-assessed to duty. (5) Where any assessment done under sub-section (2) is contrary to the claim of the importer or exporter regarding valuation of goods, classification, exemption or concessions of duty availed consequent to any notification therefore under this Act, and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said assessment in writing, the proper officer shall pass a speaking order within fifteen days from the date of assessment of the bill of entry or the shipping bill, as the case may be. The amendment of 2011 has made significant legislative changes in the procedure and modalities for assessment of duty under Section 17. Under subsection 1 of Section 17, the importer entering imported goods under Section 46, has to self-assess duty (except as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 47 requires the importer to pay import duty on the date of presentation of the bill of entry in the case of self-assessment . Alternatively, where the bill of entry is returned to the importer for the payment of duty in the case of assessment, re-assessment or provisional assessment, the import duty has to be paid within a day, after excluding holidays. The provisions contained in Section 46 for the entry of goods on importation and those in Section 17 for assessment form part of a composite scheme. Section 46 requires an importer of goods to make an entry in the electronic form of a bill of entry for home consumption or, as the case may be, for warehousing, on the customs automated system. An exception is contained in the proviso to Section 46 (1) for cases where it is not feasible to make an entry in the electronic form on the customs automated system. The bill of entry under sub-section (1) has to be presented not later than the day following the arrival of the goods though it can be presented before the arrival of goods, at a time not exceeding thirty days prior to their expected arrival. In tandem with the provisions of Section 46, Section 17 provides for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the supporting documents by availing the services at the service centre. Regulation 4 provides as follows 4. (1) The authorised person shall file the bill of entry before the end of the next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing. (2) The bill of entry shall be deemed to have been filed and self-assessment completed when after entry of the electronic integrated declaration on the customs automated system or by way of data entry through the service centre, a bill of entry number is generated by the Indian Customs Electronic Data Interchange System for the said declaration and the self-assessed copy of the Bill of Entry may be electronically transmitted to the authorised person or printed out at the service centre. (3) Where the bill of entry is not filed within the time specified in sub-regulation (1) and the proper officer of Customs is satisfied that there was no sufficient cause for such delay, the importer shall be liable to pay charges for late presentation of the bill of entry at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presentation of the bill of entry. This is not and cannot be a matter of dispute. Notification 5/2019, which introduced a new tariff entry 980 60 000 - in the First schedule to the Customs Tariff Act covering all goods originating in or exported from the Islamic Republic of Pakistan, was not in force at the time when the self-assessment was carried out. 24 Under Section 15(1)(a) the rate of duty is the rate in force on the date of the presentation of a bill of entry where the goods are entered for home consumption under Section 46. The submission of the learned ASG is that the expression on the date is adopted by the legislature in clauses (a) and (b) and in the proviso to Section 15(1). He urged that Section 15(1) has no reference to time but only to the date of the presentation of the bill of entry and once a notification was issued on 16 February 2019 enhancing the rate of duty, that is the duty in force on the date of presentation. Section 15(1)(a) uses two expressions (i) the rate and valuation in force ; and (ii) on the date of the presentation of the bill of entry for home consumption under Section 46. The provisions of Section 15(1)(a) have to be read in conju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inwards of the vessel in the Customs register was mentioned as 31 July 1981 and the rate of import duty and tariff valuation would be that which was in force on that day. The decision in Bharat Surfactants was adverted to in the decision of this court in Priyanka Overseas Pvt. Ltd. vs. Union of India 1991 Supp (1) SCC 102. Justice N M Kasliwal, speaking for the two judge Bench, observed: 34 The rate of duty and tariff valuation on the imported goods may be changed from time to time and as such the legislature has clearly expressed its intention under Section 15 as to on what date the rate of duty and tariff valuation is to be determined Many contingencies may happen in between the filing of bill of entry and actual removal of the goods from the warehouse for which sometimes the importer of goods may himself be responsible, in some cases the responsibility may lie on the customs authorities and there may also be contingencies beyond the control of both the parties. In any case the intention of the legislature being clear, rate of duty is to be applied, as may be in force on the date of actual removal of goods from the warehouse under Section 15(1)(b) of the Customs Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and the goods would be cleared on its payment in accordance with the rate of levy of customs prevailing as on March 2, 1989. Another decision of a Bench comprising three learned judges of this Court in D.C.M. vs. Union of India 1995 Supp (3) SCC 223 held as follows: 7 A reading of Sections 15, 46 and 68 makes it clear that they provide an option to the importer either to file a bill of entry for home consumption straight away (in which case he has to pay the duty determined with reference to that date) or to file a bill of entry for warehousing. In the latter case, the goods are merely warehoused. The import duty will be levied at the rate and on the basis of the valuation determined in accordance with the provisions prevailing on the date of clearance from the warehouse for which purpose the importer has to file a fresh bill of entry for home consumption. In other words, it is the date of filing the bill of entry for home consumption which determines the rate of duty in clauses (a) and (b) of Section 15. Inasmuch as the matter is left to the option of the importer and also because a uniform principle is adopted by the Act, as explained above, we see no room for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Allahabad High Court, that the insurance cover commenced from the beginning of the day and concluded that: 4 when a policy is taken on a particular date, its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award. 29 On the other hand, in National Insurance Company Limited vs. Geeta Devi (2010) 15 SCC 670, the cover note was issued on 9 June 1989 at 4:40 pm while the accident took place at 11:30 am on the same day. A two judge Bench of this Court distinguished the decision in Ram Dayal (supra) and held that when the cover note mentioned the date of issue of the policy as 9 June 1989 and the time as 4:40 pm it necessarily means that the effective date of issue and time of issue is as mentioned on the cover note. Since the cover note mentioned both the date and time, the Court held that the principle that the insurance cover would date back to midnight of the preceding day would not cover the factual situation. 30 In Ahmadsahab Abdul Mulla (2) Dead by proposed Lrs. vs. Bibijan (2009) 5 SCC 462, the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of suits under Appendix II of the old rules on the Original side was amended. Instead of a fixed fee of ₹ 30, it was provided that ₹ 150 was to be levied in all suits where the value of the subject matter did not exceed ₹ 10,000/- and in respect of suits of a higher value, ₹ 20/- was to be levied for every ₹ 5,000/- or part thereof in excess of ₹ 10,000/-. The notification stated that the amendments do come into force from the date of publication in the Fort St. George Gazette . The office hours of the High Court were from 11am to 5pm. The notification reached the High Court at about 5pm, at the close of the office hours. The issue before the Special Bench was whether the rules imposing increased institution fees on suits on the Original side of the High Court would apply the new scale to suits which had already been instituted on that day. Chief Justice Schwabe, on behalf of the majority, held that the hour of the day at which the Gazette was actually published is a wholly irrelevant consideration . The Chief Justice noted that the use of the expression from may have one of two meanings namely on and after, that is including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute delimits a period marked both by a terminus a quo and a terminus ad quem, the former is to be excluded and the latter to be included in the reckoning. The notification, in this view, fell in the former class and was held to have come into force on the first second of the 5 May, that is to say from midnight of 4 May. Hence all plaints which were filed on 5 May were liable to the enhanced fee. The tightly reasoned and eloquent dissenting opinion delivered by Justice Kumaraswami Sastri, on the other hand, deserves close attention. The learned Judge noted that if the case were to be decided on the principle that the law disregards fractions of a day, it could mean any one of two things: either that a fraction of a day is to be taken as a whole day or that it is to be excluded altogether from the calculation. Consequently, it does not help us to determine in any particular case whether the part is to be left out or kept in . Justice Kumaraswami Sastri observed that there is no invariable rule that the use of the expression from includes the first day. Nor was there any basis in principle in the submission of the Crown that the exclusion of the first day where the word fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rather have compromised with the other side or might have had resort to other proceedings like arbitration for settling their claims. I can find nothing to justify charging people, who filed their plaints on that day without knowledge of the notification which only reached the High Court at 5 p.m., with the higher fees in respect of plaints filed during the course of the day . 33 Mr Natraj, on behalf of the Union, submitted that Parliament has employed the phrase on the date without making a reference to time. Hence, he submitted that irrespective of the time of the publication or uploading of the notification under the Customs Tariff Act in the e-Gazette, the legislature has by a legal fiction, enacted that the rate of duty on imported goods will be the rate that is prevalent on the date of the presentation of the bill of entry for home consumption. He submitted that two different rates of duty cannot be applicable on the same day. Hence, according to the submission, once a notification is issued under the Customs Tariff Act, it will be a notification in force on that date and apply with effect from the commencement of that date. 34 The decisions to which a reference has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transparency and seamless administration are key features of a system which adopts technology in pursuit of efficiency. As we will explore in greater detail later in this judgment, technology has enabled both administrators and citizens to know precisely when an electronic record is uploaded. The considerations which Parliament had in its view in providing for crucial amendments to the statutory scheme by moving from manual to electronic forms of governance in the assessment of duties must not be ignored. Tax administration must leave behind the culture of an age in which the assessment of duty was wrought with delays, discretion, doubt and sometimes, the dubious. The interpretation of the court must aid in establishing a system which ensures certainty for citizens, ease of application and efficiency of administration. 36 It is with these principles of interpretation in mind that we must evaluate the submission which was urged by Mr Nataraj, on behalf of the Union, that upon the issuance of a notification enhancing the rate of duty under Section 8A of the Customs Tariff Act, the date on which the notification was issued will govern the rate applicable to all bills of entry, incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y put, is that because notification 5/2019 was issued on 16 February 2019, the court must regardless of the time at which it was uploaded on the e-Gazette treat it as being in existence with effect from midnight or 0000 hours on 16 February 2019. The consequence of this interpretation would be to do violence to the language of Section 8A(1) of the Customs Tariff Act, and to disregard the meaning, intent and purpose underlying the adoption of provisions in the Customs Act in regard to the electronic filing of the bill of entry and the completion of self-assessment. I Notification under Section 8A of the Customs Tariff Act 37 The second and alternative limb of the submissions of the ASG postulates that a notification under Section 8A(1) of the Customs Tariff Act is a legislative act. The rates of duty applicable to different categories of goods imported into India are set out in the First schedule to the Customs Tariff Act. A notification under Section 8A(1) amends the First schedule. Hence, the submission is that the schedule being a part of the Act, any amendment made to it by a notification is an amendment to the Act. The ASG relies upon the decisions of this Court in V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Schedule: Provided that such amendment shall not alter or affect in any manner the rates specified in that Schedule in respect of goods at which duties of customs shall be leviable on the goods under the Customs Act, 1962 (52 of 1962). Sub-section (2) of Section 8A specifies that the provisions of sub-sections (3) and (4) of Section 7 shall apply to a notification which has been issued under subsection (1) of Section 8A. Sub-sections (3) and (4) of Section 7 are in the following terms: (3) Every notification under sub-section (2), insofar as it relates to increase of such duty, shall be laid before each House of Parliament if it is sitting as soon as may be after the issue of the notification, and if it is not sitting within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t commencing from 0000 hours on that day. The ASG relied on the provisions of the General Clauses Act in support of his submission that it did. J General Clauses Act 40 Section 5(3) of the General Clauses Act 1897 provides thus: (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. The above provision applies to a Central Act or Regulation . Hence, the above provision makes it abundantly clear that it is only a Central Act or Regulation which comes into operation immediately on the expiration of the day preceding its commencement. The expressions Central Act and Regulation are defined by the statute. The expression Central Act is defined in Section 3(7) in the following terms: (7) Central Act shall means an Act of Parliament, and shall include- (a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and (b) an Act made before such commencement by the Governor General in Council or the Governor General, acting in a legislative capacity; T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if Rules 10 and 10-a of the Central Excise Rules could be considered a Central Act as defined in Section 3(7) of the General Clauses Act. This decision of the Court, albeit subsequently questioned for its interpretation of repeal through omission [which does not have a bearing on the issue at hand], was not assailed for its interpretation of Central Act within the General Clauses Act. Speaking through Justice D.P. Mohapatra, this Court answered the question of whether the aforesaid Rules constituted a 'Central Act' in the negative, in the following terms: 32. When the term Central Act or Regulation or Rule is used in that Act reference has to be made to the definition of that term in the statute. It is not possible nor permissible to give a meaning to any of the terms different from the definition. It is manifest that each term has a distinct and separate meaning attributed to it for the purpose of the Act. Therefore, when the question to be considered is whether a particular provision of the Act applies in a case then the clear and unambiguous language of that provision has to be given its true meaning and import. The Full Bench has equated a 'rule' wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid before Parliament.- Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation. 13. Thus in light of the provisions of the SEBI Act, 1992 under which the said Regulations have been issued, the latter do not tantamount to a Central Act as defined Under Sub-section (7) of the definition clause of The General Clauses Act, 1897. The Regulations framed under the SEBI Act were held not to fall within the definition of a Central Act contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 Parliament recognized the need to bring about suitable amendments to existing legislation to facilitate e-commerce, more so in light of India being a signatory to the United Nations Commission on International Trade Law s Model Law on Electronic Commerce in 1996. It therefore proposed to provide legal recognition of electronic records and digital signatures. This would, as the Statement of Objects and Reasons indicate, enable the conclusion of contracts and the creation of rights and obligations through the electronic medium . Parliament envisaged the use and acceptance of electronic records and digital signatures in governmental offices and agencies, to facilitate electronic governance and to make the citizens interaction with the governmental offices hassle free . Bearing the legislative number of Act 21 of 2000, the law came into force on 17 October 2000. The long title to the legislation provides that it is: An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as electronic commerce , which involve the use of alternatives to paper-based methods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved, the requirement is satisfied by preserving them in an electronic form, subject to the fulfillment of conditions. One of the conditions stipulated by Section 7(1)(c) is that the details which facilitate the identification of the origin, destination, date and time of dispatch or the receipt of the electronic record are available in the electronic record. The date and time of receipt or of the dispatch of an electronic record are crucial from this perspective to the maintenance of an electronic record. 49 In exercise of its rule making power, the Central Government formulated rules for electronic service delivery. Under these rules, called the Information Technology (Electronic Service Delivery) Rules 2011, governmental authorities must maintain time stamps of the creation of electronic records. Rule 5(1) incorporates such a requirement in the following terms: 5. Creation of repository of electronically signed electronic records by Government Authorities.- (1) All authorities that issue any license, permit, certificate, sanction or approval electronically, shall create, archive and maintain a repository of electronically signed electronic records of such licenses, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onic record enters the computer resource of the addressee .. (emphasis supplied) The dispatch of a record occurs when it enters a computer resource outside the control of the originator. The time of receipt of the electronic record is fixed by the provisions of sub-section 2 of Section 13. When the addressee has designated a computer resource, receipt occurs when the record enters the computer resource so designated. Otherwise, where no computer resource is designated, the receipt of the record is when it is retrieved by the addressee. These provisions have been incorporated in the law to enable the dispatch and receipt of a record in the electronic form to be defined with precision with reference to both- time and place. 50 In the above context, it is to be noted that the rate of customs duty is determined on the date on which the bill of entry for home consumption is presented (Section 15). The presentation of the bill of entry has to be made electronically (Section 46 read with the 2018 Regulations). The presentation is required to be made on the customs automated system. The provisions in the Customs Act for the electronic presentation of the bill of entry for ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of Gazette notification. (emphasis supplied) 53 Thus far, this Court has not had to confront the question as to whether the shift from the analog to the digital for Gazette notifications has any bearing for ascertaining when they come into force. The judgments which dealt with the starting point for the enforceability of notifications were all concerned with circumstances in which such publication took place in the physical gazette. We are now required to determine if the shift to electronic gazettes has brought about a change in this position. 54 The High Courts have begun offering guidance on this score. The Delhi High Court in M.D. Overseas Industries vs. Union of India W.P. (C) 7838/2017 decided on 15 October 2019 (Delhi High Court), dealt with a situation where the Director General of Foreign Trade issued two notifications dated 25 August 2017 restricting the importation of gold, including gold coins. Gold coins could no longer be imported freely and had to be imported in accordance with a public notice issued in that behalf. The petitioners urged that the restrictive regime created by these notifications was inapplicable to them because the notifications, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were assessed that day and levied with 30% customs duty and 10% social welfare surcharge. On the same date, a notification raised the basic customs duty from 30 to 44%. The petitioner filed four bills of entry for the remaining 2000 tons on 2 March 2018 and argued that the revised rate was not applicable to it because the notification was published in the electronic gazette only on 6 March 2018. The High Court agreed with the petitioner and held that the revised notification would come into force only after it was digitally signed by the competent official and uploaded and published in the official gazette. The relevant excerpt from page 41 of the High Court s judgment is quoted below: .The notification was published electronically on 6.3.2018. In view of the decision taken by the Government of India in terms of Section 8 of the Information Technology 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation raising the import duty had not come into effect on 3 August 2001. The Division Bench of the High Court held that the notification was not published on 3 August 2001 and must have been Gazetted only after the following weekend namely on 6 August 2001 or thereafter; the Gazette issued containing notification was offered for sale only starting from 6 August 2001; and that the mere publication of the notification on the website and the issuance of a letter to the Assistant Controller, Government of India (Press) was not sufficient for the notification to be operational and enforceable on 3 August 2001. This Court in appeal observed that according to the High Court two conditions were mandatory for the notification to be brought into force (i) Due publication in the official Gazette; and (ii) Offering the notification for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. This Court noted that, in their case, the second condition was not satisfied as the notification was offered for sale only on 6 August 2001 as it was published in the late evening hours of 3 August 2001 and the next two days were holidays. 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le that any additional requirement of publication can only be introduced by statute and the Court is bound by the applicable statutory scheme for determining enforceability. It noted: 11. In our view, as noted above, in Pankaj Jain Agencies case [(1994) 5 SCC 198] the Court directly dealt with a similar contention and after relying upon the decision in the case of Mayer Hans George [AIR 1965 SC 722 : (1965) 1 Cri LJ 641 : (1965) 1 SCR 123] rejected the same. That decision is followed in I.T.C. Ltd. [(1996) 5 SCC 538] and other matters. Hence, it is difficult to agree that the decision in Pankaj Jain Agencies case [(1994) 5 SCC 198] was not helpful in deciding the question dealt with by the Court. Section 25 of the Customs Act empowers the Central Government to exempt either absolutely or subject to such conditions, from the whole or any part of the duty of customs leviable thereon by a notification in the Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing the notification into operation, the only requirement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 60 000 - encompassing all goods originating in or exported from the Islamic Republic of Pakistan for which a rate of duty of 200 per cent has been prescribed. The exercise of the power under Section 8A is contingent on the satisfaction of the Central government that (i) the duty on any article in the first schedule should be increased; and (ii) that circumstances exist which render it necessary to take immediate action. The Central government in the exercise of this power may by a notification in the official gazette direct an amendment of the schedule to be made so as to provide for an increase in the import duty leviable on such article to such extent as it thinks necessary . Section 8A does not contain language indicative of a legislative intent to authorize the Central government to relate back the exercise of the power to a period prior to its exercise. The exercise of the power under Section 8A (2) is governed by the prescriptions contained in sub-sections (3) and (4) of Section 7. The conferment of the power has not been made retrospective either expressly or by necessary implication. 63 Section 8A enables the Central government to increase the rate of duty on an art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost . In K I Shepard vs. Union of India (1987) 4 SCC 431, a two judge Bench of this Court held that the power to frame a scheme under Section 45 of the Banking Regulation Act 1949 was not legislative in character but an administrative function. This Court observed: 9 But is the scheme-making process legislative? Power has been conferred on the RBI in certain situations to take steps for applying to the Central Government for an order of moratorium and during the period of moratorium to propose either reconstruction or amalgamation of the banking company. A scheme for the purposes contemplated has to be framed by RBI and placed before the Central Government for sanction. Power has been vested in the Central Government in terms of what is ordinarily known as a Henry VIII clause for making orders for removal of difficulties. Section 45(11) requires that copies of the schemes as also such orders made by the Central Government are to be placed before both Houses of Parliament. We do not think this requirement makes the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1972) 2 SCC 601, a three judge Bench of this Court held that: 8 The extent and amplitude of the rule-making power would depend upon and be governed by the language of the section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law-making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the condit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ederation of Indian Minerals Industries vs. Union of India (2017) 16 SCC 186, a three judge Bench of this Court formulated the principles on the subject. Justice Madan B Lokur observed that the power to frame subordinate legislation is not retrospective unless it is authorized expressly or by necessary implication by the parent statute. The Court observed: 26 The relevant principles are: (i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implication, authorises it to do so. [Hukam Chand v. Union of India [Hukam Chand v. Union of India, (1972) 2 SCC 601] and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana [Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3 SCC 620] ]. (ii) Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect. (Panchi Devi v. State of Rajasthan [Panchi Devi v. State of Rajasthan, (2009) 2 SCC 589 : (2009) 1 SCC (L S) 408] ) (iii) As regards a subordinate legislation concerning a fiscal statute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of the presentation of the bills of entry in terms of the provisions of Section 15 read with Regulation 4(2) of the Regulations of 2018. The power of reassessment under Section 17(4) could not have been exercised since this is not a case where there was an incorrect self-assessment of duty. The duty was correctly assessed at the time of self-assessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the notification bearing 5/2019 did not furnish a valid basis for re-assessment. 68 For the above reasons, we have come to the conclusion that there is no merit in the appeals. The appeals shall stand dismissed. There shall be no order as to costs. 69 Pending application(s), if any, stands disposed of. JUSTICE DR DHANANJAYA Y CHANDRACHUD JUSTICE INDU MALHOTRA JUDGMENT K.M. JOSEPH, J. 1. Does a notification under Section 8A of the Customs Tariff Act, 1975 increasing the import duty published late in the evening of 16th Feb 2019, date back to the midnight of the previous day? Does a day include its fractions? While I agree with my esteemed and learned brother in his erudite judgment that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry no. 2083178 dated 16.02.2019 (Annexure-P5) being illegal arbitrary, against the principles of natural justice and in violation to the provisions of article 14 19 of the Constitution of India and against the provisions of Section 128 129 of the Customs Act, 1962; b) Writ in the nature of certiorari/mandamus quashing the notification no. 05/2019-cus dated 16.02.2019 (Annexure-P7) being prospective and in contravention to the Notification no. 50/2017-cus. dated 30.06.2017 granting benefit of customs duty over and above NIL% as well as section 4 11 of the Customs Tariff act, 1975, c) Writ in the nature of certiorari/ mandamus directing the Respondent No.3 to issue detention memo in terms of Regulation 6(1)(1) of the Customs Act, 1962 and further directing the Respondent No. 4 to release the goods without demanding any ground rent. d) Writ in the nature of certiorari/ mandamus restraining the respondent no.4 for conducting auction of the goods. 5. It is these Writ Petitions which have been allowed by the High Court. 6. The High Court has found that in the Scheme of the Customs Act read with the Tariff Act, the rate of duty is to be determined with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument of the Union of India Shri K.M. Nataraj, learned counsel for the Union of Indiaappellant would contend that there is no challenge to the validity of Section 15 of the Customs Act. The said provision must be taken as it is and applied. The result would then be inevitable that the notification in question which no doubt was published late in the evening on 16.02.2019, fixed the increased rate of duty on all goods imported from Pakistan and it was undoubtedly to have effect from that day onwards. In other words, since Section 15 of the Act contemplates that the rate of duty to be the rate in force during the day, and as the Notification was published on 16.02.2019, the day 16.02.2019 was not to be excluded. It was, in other words, to have operation throughout the day, 16.02.2019. It is contended that there cannot be two rates of duty which are at loggerheads with each other on a single day. The time of the day at which the notification was actually published, would pale into insignificance in answering the question as to whether the said notification which is of the kind involved in this case was to hold sway during the course of the whole day. He urges us to notice that Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the Bills of Entry. In the case where the goods are cleared for being warehoused under Section 68, again the duty is to be paid at the rate with reference to the presentation of the Bills of Entry for home consumption under Section 68. The two other circumstances pertain to exports. In the case of goods entered for export from India, the rate of duty is fixed with reference to the date on which the proper officer makes an order permitting clearance and loading of goods for exportation under Section 51. In any other case, which is the fourth Category, the duty is fixed with reference to the date of payment of duty. He would draw our attention to the Electronic Filing of Bills of Entry Regulations, 2018. In particular, he would draw our attention to Regulation 4 of the said Regulations. He would point out that Regulation 4, of the said Regulations, makes it clear that once the Bills of Entry is filed electronically and the event takes place, which under law determines the point of time with reference to which the rate of duty is to be imposed, the position is unalterable. He would submit that neither is the rate of duty dependent on the date of payment of duty nor is it base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Narsimha pointed out that it would be the Notification which was issued on 10.00 a.m., which would be the Notification in force, and therefore, the increased duty may have been payable. Mr. P.S. Narsimha has also, no doubt, a contention that the Notification issued under Section 8A is illegal for the reason that what is contemplated under Section 8A is the increase of the rate of duty in respect of items which are already included in the first schedule of the Tariff Act whereas a perusal of the Notification would show that a new entry has been made and the rate of duty has been provided therein, viz., the rate of duty of all goods emanating from Islamic Republic of Pakistan was increased to 200 per cent. But this line of argument was not pursued. 12. Both sides referred us exhaustively to case law. ANALYSIS 13. The Customs Act is a consolidating Act. It is intended, inter alia, to deal with the menace of smuggling. It contains various sanctions. It also provides for the levy of Customs duty on import and export. It is a law which provides revenue to the State. It is also an important tool in the hands of the nation to arrange its economic affairs to make it best sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962 (52 of 1962), are specified in the First and Second Schedules. 15. In other words, the rate of duty must be one which is provided by Parliament. It may require an amendment to the Tariff Act to increase or decrease the rate of duty under Section 2. Section 11A contemplates power with the Central Government to amend the First Schedule. It cannot be, in the region of doubt, that the exercise of power under Section 11A would amount to exercise of delegated legislation. Section 11A(2) stipulates the procedure to be adopted after the Notification is issued. It has to be placed before each House of Parliament and the further procedures are as provided therein, which includes the power to modify the Notification. The proviso, however, makes it clear that the exercise of power under Section 11A, to amend the First Schedule, will not involve or amount to an increase in the rates which are specified in the First Schedule in regard to duties of customs leviable under the Customs Act. In other words, barring the rate of customs duty, the contents of the First Schedule can be amended by the Central Government under Section 11A. Resultantly, Section 11A does not confer upon the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is law within the meaning of Article 13 of the Constitution of India and it is a species of delegated legislation. [See in this regard AIR 1961 SC 21 para 11] THE SCHEME OF THE CUSTOMS ACT QUA RATE OF DUTY ON IMPORTS AND ASSESSMENT TO DUTY 17. Section 12 is the charging Section. It reads as follows: 12. Dutiable goods.- (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975), or any other law for the time being in force, on goods imported into, or exported from, India. (2) The provisions of sub-section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government. 18. Section 15 deals with the date relevant to fix the rate of duty. It reads as follows: 15. Date for determination of rate of duty and tariff valuation of imported goods.-(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 46 (4)] 20. The next procedure contemplated under the Customs Act in regard to an importer entering any imported goods under Section 46 for home consumption is for the importer to carry out self-assessment except in a situation covered by Section 85 [See Section 17(1)]. The proper Officer is to verify the entries in the Bill of Entry entered under Section 46, inter alia, and the self-assessment of the goods carried out by the importer. He is clothed with the power to examine or test any imported goods, inter alia, for the purpose of such verification. The importer is to furnish any document for verification, as may be necessary towards the carrying out of the verification [See Section 17(3)]. It is thereafter that Section 17(4) empowers the Officer who carries out the verification to re-assess the duty leviable on such goods. The perusal of Section 17(4) would reveal that such re-assessment can be done, when, on verification, examination or testing of the goods, the officer finds that the self-assessment is not done correctly. Section 17(4) also employs the expression otherwise after the words verification, examination or testing of the goods . It is argued by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Second Proviso to Section 47(1). 24. What is the effect of non-payment of the duty within the time specified in Section 47(2)? The answer to this also is contained in Section 47(2) itself as the law mandates that the importer shall pay interest on the duty not paid or short paid till the date of its payment at the rate as provided therein. It is to be noticed that Section 47 is related to goods entered for home consumption. No doubt without payment, an order for clearance of goods would not be passed. 25. Section 28 of the Customs Act provides for recovery of duties not levied, not paid, short levied, short paid or erroneously refunded. Similar provisions are contained in the Central Excise Act as well. It is also noteworthy that Section 2(25) defines the word imported goods as meaning the goods brought into India from the place outside India but it does not include the goods which have been cleared for home consumption. 26. A perusal of Section 15(1)(a) makes it clear that as far as goods entered for home consumption under Section 46, the rate of duty is to be the rate of duty in force on the date on which the Bill of Entry in respect of such goods is presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bill of Entry may be electronically transmitted to the authorised person or printed out at the service centre. 28. A perusal of the aforesaid Regulation makes it clear that there is not only a deemed presentation of the Bill of Entry which the law calls into existence, as provided therein but also completion of selfassessment. This deemed presentation and completed self-assessment takes place when the bill of entry number is generated. Once there is a deemed presentation of the Bill of Entry, then, under Section 15(1)(a), the rate of duty, which is in force on such deemed date of presentation, would be the rate which is applicable. This is, no doubt, subject to the further requirement that the goods are physically present in the Customs Station. This is for the reason that under the First Proviso to Section 46(3), an importer can present a Bill of Entry in anticipation of the arrival of the goods provided that the presentation of such Bill of Entry is limited to a period not exceeding thirty days prior to the expected arrival. However, in case, where the Bill of Entry is presented under the First Proviso to Section 46(3), the rate of duty will be determined with refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Officer and others (1996) 6 SCC 634, where the earlier case law has been exhaustively dealt with). 32. A Notification, which is made by the Executive, must indeed be made known. Ordinarily this is made known by being published in the Gazette. In this regard, it is profitable to refer to what this Court laid down in the decision reported in B.K. Srinivasan v. State of Karnataka (1987) 1 SCC 658: 15. It is, therefore, necessary that subordinate legislation, in order to take 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 publis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to notification at all ...... 35. Thereafter, this Court went on to hold as follows: 11. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published. 36. It may be noticed that a Bench of three learned Judges came to, however, overrule the Judgment in New Tobacco Company (supra) in the decision reported in Union of India and others v. Ganesh Das Bhojraj 2000 (9) SCC 461. Therein a Notification was issued under Section 25 of the Customs Act on 04.02.1987, amending an earlier Notification of the year 1976 by which exemption had been granted and limiting the exemption to the duty in excess of 25 per cent. The Bill of Entry was filed on 05.02.1987. This Court took the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2019, which means, since the day 16.02.2019 was born, immediately after the midnight on 15.02.2019, does a day mean the first moment after the midnight? If that were the effect, what would be its impact on the Bills of Entry which were electronically presented under Section 46(1) of the Customs Act read with Rule 4(2) of the 2018 Regulations, which have already been referred to above. It is here that it becomes necessary to notice the provisions of Section 9 of the General Clauses Act, 1897. SECTION 9 OF THE GENERAL CLAUSES ACT, 1897 40. Section 9 of The General Clauses Act, 1897, reads as follows: 9 Commencement and termination of time. (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word from, and, for the purpose of including the last in a series of days or any other period of time, to use the word to. (2) This section applies also to all Central Acts made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. 41. In this case, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Security was given by A on the 12th of July. The Testator died on 12th of January between 8 and 9 in the evening. Security was given by A about 9 in the evening on 12th of July. The question, which was considered was whether the date of the death of the Testator was to be included within the six months, within which, A had to give the security, or to be excluded. If the day of the death of the Testator was included, the security given by A would be beyond the period of six months and she would stand divested of the bequest, whereas, if the date of the death of the Testator was excluded, then, A would be entitled to the bequest as the security given by her would be within the period of six months. It would be profitable to notice the relevant part of the discussion by the learned Judge: It is not necessary to lay down any general rule upon this subject: but upon technical reasoning I rather think, it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. (See the note, 14 Ves. 554, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was compliance with Section 51 of the Companies Act, 1862. The said provision, inter alia, required confirmation of the Resolution at a subsequent General Body Meeting which was held at an interval of not less that fourteen days and not more than one month from the date of the meeting at which the Resolution was first passed. 47. Chitty J., in his opinion, referred to Lester v. Garland (supra) and held, inter alia, as follows: Lord Mansfield in his well-known judgment in Pugh v. Duke of Leeds says, Date does not mean the hour or the minute, but the day of delivery, and in law there is no fraction of a day. The day of the death of the testator, which is equivalent here to the day of the first meeting, was not reckoned by Sir William Grant in his well-known decision in Lester v. Garland, where a bond had to be given within six months after the testator's decease. The 51st section states that the subsequent or second meeting is to be held at an interval of not less than fourteen days or more than a month. The word at means after the interval, or at some time after the interval, prescribed by the other part of the section. The word at refers grammatically rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary meaning of the words is that he must hold them for twenty-one days; but we are told that under a technical rule of construction the section is satisfied if he holds them for twenty days and a part of a day. Which is right? ... Here the result may be to make a man a bankrupt, which is not a benefit to him, nor necessarily to the whole of his creditors. The bankruptcy law is a law of public social policy, and affects in a very detrimental manner the status of those who are brought under its operation; in old times, indeed, to make a man a bankrupt was to make him a criminal; Bankruptcy is the creature of statute, and under a long series of bankruptcy statutes the same practice as to computing time has been followed, though for different purposes or results; the practice is a perfectly well-known one, the rule in bankruptcy being to exclude the first day or part of a day, and to begin the computation of time on the first whole day. Again, there is the rule of construction that if a statute, which so affects a man's status as to be in effect a penal enactment, is capable of two constructions, that one should be adopted which is most favourable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant did not put the proposition in so many words, his judgment leads us to the conclusion that the question of whether the day on which the act is done is to be included or excluded must depend on whether it is to the benefit or disadvantage of the person primarily interested. But whether or no the proposition is to be put so high, we have here a statute which does not say twentyone days from taking possession; and it is only to cases where a terminus is mentioned that any such general rule was ever held to apply. The present is an a fortiori case; no terminus is mentioned, and the only question is whether the sheriff held for twenty-one days. (Emphasis supplied) 51. On 05.05.1922, by a Notification in the Fort St. George Gazette Extraordinary, published on a Friday, the Table of Fees under Appendix-II, the old Rules on the Original Side of the Madras High Court, was amended and instead of a fixed fee of ₹ 30/- levied under Serial No.1, it was provided that ₹ 150/- was to be levied in all the suits where the value of the subject matter does not exceed ₹ 10,000/-, inter alia. The Notification further recited that the amendments were to come into force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of it in time for suits to be filed between the time of the publication and of its actually coming into operation. (Emphasis supplied) 52. In the Judgment of V.M. Coutts Trotter J., the learned Judge observes as follows: 6. What I conceive to emerge from the decided cases is this: that as the law in general neglects fractions of a day you must either exclude or include the whole of the day with which a given statute or rule or regulation deals. And the exclusion or inclusion, I think, is clearly provided in two other rules. If you are fixing the point of time at which a certain state of things is to be called into existence, that state of things comes into existence at midnight of the day preceding the day at which or on which or from which or from and after which the new state of things begins. In such cases the statute or rule is only concerned in fixing the terminus o quo of a new state of law which is enacted to continue indefinitely, in other words, until repealed by a new enactment of the legislature where, in short, you have a terminus a quo but no terminus ad quem. Where a statute fixes only the terminus a quo of a state of thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the exercise of the powers entrusted to them to control the administration of justice and the fees were raised because in the opinion of the Judges it was just and proper that litigants ought to pay more for the benefits which they derive by resorting to the jurisdiction of the High Court. The notification expressly states that it is to have effect from the date of publication, the object of the publication being that the public ought to have notice that the fees were being raised so that they might know exactly what they were in for when they resorted to the High Court for justice. The notification, as I have already said, was (as appears from a note of the Deputy Registrar) received in the High Court at 5 p.m., the office closing at 5 p.m. It seems to me that the litigants who filed plaints before they or even the office had knowledge of the publication of the rule did what was perfectly valid under the old rules and they presented the plaints with ₹ 30 stamp irrespective of the value of their claim. A person who files a plaint which is properly stamped and which is in order at the time of presentation is entitled to have his plaint admitted on presentation though as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded Chief Justice M. Jagannadha Rao (as His Lordship then was), took note of judgment of the Madras High Court reported in In Re: Court Fees AIR 1924 Madras 257 under the Court Fee Act and took the view that the word from is similar to the word after , and therefore, the date on which the detention order was served, has to be excluded. In this regard, the Court took the view that the legislature has given clear 5 days to the Government to complete many other formalities before serving the grounds of detention. This is besides being guided by the use of words as soon as may be . THE CASES UNDER CONTRACTS OF INSURANCE 55. In the decision reported in New India Assurance Company Limited vs. Ram Dayal and Others (1990) 2 SCC 680, the vehicle was insured earlier upto 31st August, 1984. Instead of obtaining renewal, a fresh insurance was taken from 28th September, 1984. The accident took place on the very same day, namely, 28th September, 1984. The insurer repudiated its liability as the policy was taken after the accident. The High Court took the view that the policy of insurance became operative from the commencement of the date of insurance, namely, the previous midn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of the policy was after the accident, the Insurance Company would not be liable. 57. After having made a reference to some of the decisions covering different branches of law, the question to be resolved comes into focus. It is clear that the situation which is presented before us, is not covered by the principle which is embedded in Section 9 of General Clauses Act, 1897. In other words, having regard to the terms of the Notification, which is a form of delegated legislation, by which the Central Government has increased the rate of import duties of goods imported from Pakistan, though the notification is gazetted on 16.02.2018 at 20:46:58 hrs., there is no period for which it is to last as already noticed, and in that sense, it can be argued that there would be no occasion for exclusion of the date on which it was issued. WHETHER SECTION 5(3) OF THE GENERAL CLAUSES ACT APPLIES TO THE NOTIFICATION? 58. Section 5 (3) reads as follows: 5(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. 59. The argument of learned Additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented on 17.02.2019 onwards. In other words, it would be an interpretation which would exclude 16th February, 2019. 3.The third day to look at it would be as follows 16.02.2019, would mean the day commencing immediately after the midnight on 15.02.2019, and therefore, it would be the whole of the 24 hours commencing at midnight of 15.02.2019 and would include the period of time during the day during which the respondents had presented the bill of entry . 63. The question is certainly not free from difficulty. The solution must, however, be found. On one hand, we are dealing with a Notification by which the appellant has purported to increase the rate of duty to a hefty quantum of 200 per cent, following the incident which took place at Pulwama. Would it be a fair and reasonable to include the whole, the day 16.02.2019, having regard to the effect on the importer of the goods who would have struck the bargain on the basis of rate of duty being what it was prior to the Notification? Could it not be said that based on the contracts for import, the importer would have entered into contracts for sale of goods in India where the price would be fixed with reference to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of Additional Solicitor General, are duly honoured. It is his argument that any other view would involve rewriting of Section 15, as Section 15 contemplates the rate of duty to be the rate of duty for the day. There cannot be two rates of duty at a given point of time. If the rate of duty, on a proper interpretation of the Notification would hold the field at all points of time during the whole of 16.02.2019 at which the respondents may have presented the Bills of Entry in tune with the prevailing rates of duty which would have been applicable otherwise, it would not detract from the power of authority to reassess on the strength of an instrument like the Notification. What would logically and inexorably follow, in other words, is that the rate of duty applicable during the whole of the day on 16.02.2019 was only the increased rate of duty. This was, therefore, the correct rate of duty at which the importers were to pay the duty. There is no illegality involved in resorting to power enabling reassessment and recovery of the correct duty from the respondents. In other words, there is no retrospectivity involved, runs the argument. 68. There can be no doubt that the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act or reservation binding the earlier transferees, be subject to the rights previously created. 73. In an enquiry, as to the priority of title, the fractions of the day, undoubtedly, will assume relevance. In fact, the exact time at which a document is registered, will determine the question of priority, and consequently, of title itself, to the property concerned and it is open to parties to adduce evidence in this regard. 74. Section 47 of the Registration Act, 1908, reads as follows: 47. Time from which registered document operates.-A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. Here again, the time of the day may become decisive. The recent decisions of this Court in regard to insurance contracts appear to accept the significance of the time of the day. (See para 56 of this judgment). 75. Section 5(1) of General Clauses Act, 1897 reads as follows:- 5. Coming into operation of enactments.- (1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been approached on an analysis as to the nature of subordinate legislation and the point of time when a subordinate legislation comes into force. The concept of State action, satisfying the requirement of it being fair, as is the mandate of Article 14, could not have been possibly considered by the learned Judges of the Madras High Court. Under the Customs Act read with the Tariff Act, as noticed, the Scheme provides for an importer, wishing to enter goods for home consumption, to file Bills of Entry, do self-assessment and pay the duty on the same day. If all goes well, which means that the selfassessment is in accordance with the existing law, and the rate of tax is calculated with reference to the rate of duty as stipulated and the amount of duty is paid, and if there is any other amount to be paid, the same is also paid, Section 47 of the Act would oblige the Officer, unless, of course, the goods are prohibited goods, to issue an Order permitting clearing the goods. Though, there is no Order for clearing the goods in these cases under Section 47, the said Order is the culmination of the steps to be undergone by an importer for clearing the goods. Once the self-assessment is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to alter the rate of duty which is prevalent at the time of the self-assessment following the due presentation of the Bill of Entry. If it is otherwise, it will be open to the Department to reopen cases of concluded assessments by virtue of the deemed completion of assessment under Regulation 4(2) without any legal justification. That would be plainly impermissible being illegal. This is not a case where the assessment is assailed on any other ground except by insisting on a rate of duty which is in applicable. WHETHER THE CASE LAW RELIED UPON BY THE APPELLANTS MILITATE AGAINST THE AFORESAID VIEW 81. The question which arose before the Constitution Bench of this court in M/s. Bharat Surfactnts (P) Ltd. v. Union of India 1989 (4) SCC 21 may not assist the appellants. The case involved a challenge to Section 15(1)(a) of the customs Act. This court repelled the challenge. More importantly, that was a case where the vessel in which the goods were carried belonging to the petitioners arrived on 11th July 1981. Berth was not available. By reason of the same it could not discharge its cargo at Bombay. This court took the view that what is relevant is the date on which the Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate under section 15(1)(b) as it stood. It does not have any effect qua the facts of the case before this Court except that what determines the date of the rate will be found from Section 15 of the Customs Act. 82. Coming to the decision of this Court in Raj Kumar Yadav v. Samir Kumar Mahaseth 2005 (3) SCC 601, the facts of the case was that an election petition was presented on 27.8.2003 after the designated judge had retired to his chamber at 4.15 p.m.. The last date of limitation was 27.8.2003. The court inter alia held as follows: 6. The limitation provided by Section 81 of the Act expires on the 45th day from the date of election. The word day is not defined in the Act. It shall have to be assigned its ordinary meaning as understood in law. The word day as per English calendar begins at midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context. (See Ramkisan Onkarmal Agrawal v. State of Maharashtra [AIR 1994 Bom 87 : 1994 Mah LJ 369] , AIR at p. 94, Municipal Council of Cuddalore v. S. Subrahmania Aiyar [16 MLJ 101 : ILR (1906) 29 Mad 326] and P. Ramanatha Aiyar, The Law Lexicon, pp. 470, 471.) Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 834-35). The word date is much more commonly descriptive of a day than of any smaller division of time (per Stormonth Darling, L.O., Simpson v. Marshall [37 Sc LR 316] Date means day, so that where a cover note providing for temporary insurance of a motor car expires 15 days after date of commencement it runs for the full 15 days after the day on which it was to commence (Cartwright v. MacCormack [(1963) 1 WLR 18 : (1963) 1 All ER 11 (CA)] ). XXX XXX XXX XXX 11. The inevitable conclusion is that the expression date fixed for the performance is a crystallised notion. This is clear from the fact that the second part time from which period begins to run refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on when the plaintiff has notice that performance is refused . Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. 12. Whether the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary under Article 173 that the person authorised by the Election Commission should be the Returning Officer. 14. In Paynter v. James [(1866-67) LR 2 CP 348] , Bovil, C.J., quoted, with approval, the passage from the judgment of Tindal, C.J., in Regy v. Humphery [10 Ad E 335] , in which the following occurs: we hold it therefore to be unnecessary to refer to instances of the legal meaning of the word upon which, in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject-matter of the enactment. 15. Bovill, C.J., observed that that is a very clear statement of the various meaning of the word on or upon . 16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned Counsel for the petitioner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the notification issued under Section 8A of the Tariff Act is made by the legislature itself. By its very nature, delegated legislation is legislative in character but if it is to be a Central Act within the meaning of Section 5 of General Clauses Act, it must be made by the legislature. Delegated legislation which is called administrative legislation in England, is exercise of legislative power by the executive. It is to be further noticed the fact that the notification issued under Section 8A is in the exercise of its legislative power or that it may have to be read in the same manner as if it is a part of the Act, will not detract the Court from ascertaining as to who is the author of the exercise of the legislative power, namely, whether it is an exercise of power by the legislature or by its delegate. Upon answer to the question, namely, that the author of the legislative effort is the executive, the question would necessarily arise as to whether there is publication. In the scheme of the Customs Act, the Tariff Act and the 2018 Regulations, the time at which the notification under Section 8A is published would indeed have relevance as already found. 86. In this view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
