TMI Blog2023 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... are not inclined to accept the submissions of the revenue that rule 14 being subordinate legislation cannot take precedence over the statutory provisions for the simple reason that the notification being subordinate legislation cannot go contrary either to the Act or the Rules. The reason for implementing the notification immediately on the same day was the underlying object for introducing the safeguard duty and the purpose which it sought to achieve, i.e. to safeguard the interest of the domestic industry. This is evident from the notification when it says that the Director General (Safeguard) in his final findings has come to the conclusion that increase in imports of Seamless Pipes and Tubes into India has caused serious injury to the domestic producers of Seamless Pipes and Tubes necessitating the imposition of safeguard duty on import of these goods into India. It is thus concluded as under: (i) The notice under section 28 of the Customs Act, 1962 have been validly issued by the Department for the non-levy of safeguard duty. (ii) That in terms of sub-section 9 of section 8B of CTA, the provisions of Customs Act are applicable to the safeguard duty chargeable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023 - MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) AND MS. BINU TAMTA, MEMBER (JUDICIAL) Shri R.K. Philips and Shri Apoorva Philips, Advocates for the Appellant Shri Rakesh Kumar, Authorized Representative of the Respondent ORDER The issue for our consideration in the present appeal pertains to levy of safeguard duty in terms of notification No. 02/2014-Customs dated 13.08.2014, issued under the provisions of section 8B (1) of the Customs Tariff Act, 1975 (referred to as CTA) read with Rule 12, 14 and 17 of the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997 (hereinafter referred to as the Rules). 2. The appellant, M/s Mita India imported two shipments of 'Seamless Steel Tubes' from Hong Kong. The Bills of Entry No. 6459749 dated 18.08.2014 and 6690337 dated 08.09.2014 were presented for clearance of the goods in question for home consumption after depositing the customs duty on the assessible value of Rs.55,99,484/-. The goods cleared vide bill of entry no. 6459749 dated 18.08.2014 were shipped on 17.07.2014 and the goods covered under Bill of Entry No. 6690337 dated 08.09.2014 were shipped on 07.08.2014 from the country of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, was followed by the Apex Court in Priya Blue Industries Ltd Vs Commissioner of Customs (Preventive) 2004 (172)ELT 145, which was then followed by this Tribunal in Orion International Ltd Vs Commissioner of Customs, New Delhi 2005(188)ELT 193 and also in Evershine Customs (C F) Pvt. Ltd. Vs. Commissioner of Customs, New Delhi, 2021 (8) TMI 906-CESTAT New Delhi, the common principle which runs through these decisions is that once an order of assessment is passed the duty would be payable as per that order unless the said assessment order is reviewed under section 28 or is modified in an appeal. The duty collected under that order cannot be refunded to an assessee on the ground of having been wrongly charged or collected. The relevant para in the case of Evershine is quoted herein below: 27. However, if duty is not levied, short levied, not paid, short paid or erroneously refunded such duty can be demanded under section 28 by issuing a show cause notice. There is no need to assail the original assessment order in this case. In other words, if there is excess payment due to assessment, the claimant of refund will have to first challenge the assessment but if there is short pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Government may allocate such tariff-rate quota to supplying countries having a substantial interest in supplying the article concerned, in such 55 manner as may be provided by rules. (5) The Central Government may, pending the determination under sub-section (1), apply provisional safeguard measures under this sub-section on the basis of a preliminary determination that increased imports have caused or threatened to cause serious injury to a domestic industry: Provided that where, on final determination, the Central Government is of the opinion that increased imports have not caused or threatened to cause serious injury to a domestic industry, it shall refund the safeguard duty so collected: Provided further that any provisional safeguard measure shall not remain in force for more than two hundred days from the date on which it was applied. (6) Notwithstanding anything contained in the foregoing sub-sections, a notification issued under sub-section (1) or any safeguard measures applied under sub-sections (2), (3), (4) and (5), shall not apply to articles imported by a hundred per cent. export-oriented undertaking or a unit in a special economic zone, unless,- ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s injury or causes of threat of serious injury in relation to identified article may be determined; (iii) the manner of assessment and collection of safeguard duty; (iv) the manner in which tariff-rate quota on identified article may be allocated among supplying countries; (v) the manner of implementing tariff-rate quota as a safeguard measure; (vi) any other safeguard measure and the manner of its application. (11) For the purposes of this section,- (a) developing country means a country notified by the Central Government in the Official Gazette; (b) domestic industry means the producers,- (i) as a whole of the like article or a directly competitive article in India; or (ii) whose collective output of the like article or a directly competitive article in India constitutes a major share of the total production of the said article in India; (c) serious injury means an injury causing significant overall impairment in the position of a domestic industry; (d) threat of serious injury means a clear and imminent danger of serious injury. (12) Every notification issued under this section shall be laid, as soon as may be after it is issued, befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of the powers conferred by sub-section (1) of section 8B of the Customs Tariff Act, read with rules 12.14 and 17 of the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997, the Central Government after considering the said findings of the Director General (Safeguard), hereby imposes on Seamless Pipes and Tubes falling under aforesaid tariff items to the Customs Tariff Act, when imported into India, a safeguard duty at the following rate, namely- (a) twenty per cent. ad valorem when imported during the period from 13th August, 2014 to 12th August, 2015 (both days inclusive); (b) ten per cent. ad valorem when imported during the period from 13th August, 2015 to 12th August, 2016 (both days inclusive); and (c) five per cent, ad valorem when imported during the period from 13th August, 2016 to 12th February, 2017. 2. Nothing contained in this notification shall apply to imports of Seamless Pipes and Tubes from countries notified as developing countries under clause (a) of sub-section (6) of section 8B of the Customs Tariff Act, other than the People's Republic of China. Note: For the purpose of this notification, Seamless Pipes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted into, or exported from, India. Thus plain reading of Section 2(15) and Section 12 makes it evident that the duty of Customs include all the duties that are levied under the Custom Tariff Act 1975. 11. The next submission of the appellant is that the goods were shipped from the country of origin on 17.07.2014 and 07.08.2014, against the two Bills of Entry which were well before the impugned notification was issued on 13.08.2014. In support of their argument they relied on the definition of 'imported goods' under sub section (25) of section 2 of the Customs Act, to mean any goods brought into India from a place outside India and also on the term 'India' as defined in sub-section (27) of section 2 of the Customs Act to say that it includes territorial waters of India. Further, the appellant fortified its argument by saying that duty under section 12 is levied on goods being imported into India which includes the territorial waters of India and therefore the goods attain the character of imported goods upon entering territorial waters of India which in the present case is much prior to the date of notification. On this aspect, the appellant have relied on sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant in this regard is untenable and needs to be rejected. 14. We may now refer to the case law on the subject i.e. interpretation of the term relevant date . The validity of section 15 (1) has been upheld by the Constitution Bench of the Supreme Court in M. Jahangir Bhatusha 1989 (42) ELT 344. 15. Reference is made to the decision of the Apex Court in Prakash Cotton Mills (P) Ltd., Vs B. Sen, 1979 (4) ELT 241, wherein with regard to the date of determination of rate of duty of warehoused goods, it has been observed: 4. It is thus the clear requirement of clause (b) of sub- section (1) of section 15 of the Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross- reference to section 49 of the Act shows that an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he may be permitted to do so. The other relevant provision is that contained in section 68 of the Act which provides that the importer of any w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities in the matter of determining the date of inward entry was rejected. 18. The Apex Court in Union of India Vs Apar Private Limited, 1999 (112) E.L.T 3 (S.C.) overruled the decision of the Bombay High Court in Shawhney Vs Sylvania Laxman, 77 Bom L.R. 380 which held that the goods which were exempt from payment of tax on the day when they entered the territorial waters no customs duty was payable. The Court referring to the decisions in Bharat Surfactants and Dhiraj Lal Vohra took the view that what is relevant is the date on which the bill of entry in respect of goods is presented under section 46 and in the case of goods which are warehoused the relevant date would be the date on which the goods are actually removed from the warehouse. 19. We would like to refer some of the decisions of the Tribunal on the issue of relevant date in terms of section 15 of the Customs Act. The Larger Bench of this Tribunal in Collector of Customs, Bombay Vs New India Industries, Bombay, 1985 (21) ELT 159, took note of the earlier decision of the Larger Bench of the Tribunal in the case of Bayer (India) Ltd 1984 (16) ELT 375 which took the view that it is futile to contend that the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to rule 14 of Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997. Rule 14 reads as under:- Rule 14 . Date of commencement of duty.- (1) The Safeguard duty levied under rule 10 or rule 12 shall take effect from the date of publication of the notification, in the Official Gazette imposing such duty. (2) Notwithstanding anything contained (2) in sub-rule (1), where a provisional duty has been levied and where the Director General has recorded a finding that increased imports have caused or threaten to cause serious injury to domestic industry, it shall be specified in the notification under sub-rule (1) that such safeguard duty shall take effect from the date of levy of provisional duty. 23. We agree that Rule 14 of the Safeguard Rules provides that the date of imposition of safeguard duty shall be the date only after publication of the Notification in the official gazette and therefore the safeguard duty shall not be applicable in the case of goods cleared vide Bill of Entry No. 6459749 dated 18.08.2014 as the same is prior to the publication of the Notification. It is a settled principle of law that a notification comes into force from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower, under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019. 24. We need to refer the latest decision dated 03.02.2023 in the case of Adani Wilmar Ltd., vs. Commissioner of Cus., Bangalore in Customs Appeal No. 20277/2020 where the Bill of Entry was presented on 01.03.2018 and the Notification under section 25 of the Customs Act was also issued on 01.03.2018 but the same was digitally signed e-gazetted on 06.03.2018. The Tribunal Regional Bench, Bangalore, taking note of the decision of the Gujarat High Court in Adani Wilmar Ltd., Civil Miscellaneous Application No. 8058/2019 dated 11.11.2022 in Ruchi Soya Industries Ltd., -2020-TIOL-1501-HC-AHM-CUS also the decision of the A.P. High Court in Ruchi Soya Industries Ltd., -2019 SCC ONLINE AP 151 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the non-levy of safeguard duty. (ii) That in terms of sub-section 9 of section 8B of CTA, the provisions of Customs Act are applicable to the safeguard duty chargeable under the section, including those relating to the date of determination of rate of duty, assessment, non-levy, short-levy, refunds, interests, appeals, offences and penalties. (iii) Therefore, the rate of duty and tariff valuation of imported goods shall be determined under section 15(1) of the Customs Act, 1962 in the following manner:- a. Where goods are cleared for home consumption under section 46, the rate of duty shall be as on the date on which the Bill of Entry is presented. b. Where goods are cleared from the warehouse under section 68, the date the goods are actually removed from the warehouse substituted by the Finance Act, 2003 w.e.f. 14.05.2003 to read as, a bill of entry for home consumption in respect of such goods is presented under that sections . (iv) The relevant date for determining rate of duty is not with reference to the entry of the vessel into the territorial waters in India before the presentation of the Bill of Entry. Therefore, to say that the goods were shipped from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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