TMI Blog2023 (5) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of this position/standing of the Central Government s law making power. Both the notifications issued under Section 25 of the Customs Act and Section 8A of the Customs Tariff Act stand on similar footings for being delegated legislation for not being an Act or Regulation as has defined in the General Clauses Act, for which fraction of time could have been ignored and Section 5(3) of the General Clauses Act, 1897 would not be applied to these notifications, as otherwise contrary is expressed by way of insertion of deeming provisions in Regulation 4(2) of Regulation 2018, and in enabling provision of Section 46 of the Customs Act, while Section 15(1)(a), 17 Section 46(1) and 47(2)(a) Constitute one composite scheme. Re-assessment of duty post completion of self-assessment and out of charge order, on the basis of Notification No. 93/2017-Cus. published subsequent to such completion of assessment, is contrary to the provision of law. Appeal allowed. - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Anil Balani, Advocate for the Appellant Shri Sydney D Silva, Addl. Commissioner, Authorised Representative for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Customs Act, 1962 clause-I proviso is applicable in the case of Appellant and the same indicates that even if, in cases where bill of entry has been presented before the date of entry of vessel inward or arrival of aircraft or vehicle carrying imported goods, the bill of entry shall be deemed to have been presented on the date of such entry inwards. (d) Appellant s Counsel Mr. Anil Balani placed his reliance on the recent full Bench judgement of the Hon ble Supreme Court passed in the case of Union of India Vs. G. S Chatha Rice Mills reported in 2020 (374) ELT 289 (SC) to substance his stand and the same fact is noted by the Commissioner (Appeals) in his order, but decision did not go with the ratio of the judgment, as he had distinguished it and finally held it to be not applicable. 4. The only disputed fact, therefore, is that the Commissioner (Appeals) did not agree that the ratio of the judgment of G. S Chatha Rice Mills case would determine the issue before him concerning enforceability of the notification, its effective date and time of applicability enhancing the rate of duty and distinguished the same on the ground that the said order was passed in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. (2) (3) (4) Every notification issued under sub-section (1) or sub-section (2A)] shall, unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette.to justify that the said notification came into force on the date it was issued by the Central Government for publication in the official gazette. (underline to emphasis) to say that Section 25 Clause (4) would apply on the date of issue of notification by the Central Government for publication and that would be the effective date of its implementation. (c) Then he distinguished the judgment of the Hon'ble Supreme Court passed in the case of G. S. Chatha Rice Mills to say that notification issued under Section 8A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth 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, including those which were presented before the enhanced rate was notified. The submission cannot be accepted for several reasons. For one thing, it misses the significance of the expression in force wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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. After reproduction of these two paragraphs from G.S. Chatha Rice Mills judgment, the one line conclusion that can be drawn here is that Commissioner (Appeals) finding on application of Section 15(1) is confined only to the date of notification is erroneous when it related to the notification issued by the Central Government. 8. Before going to the second ground of rejection by the Commissioner (Appeals) as referred in para (b) it would bring more clarity in bringing the third ground for discussion with reference to the judgment of G.S. Chatha Rice Mills concerning the standing of the notification issued under Section 8A of the Customs Traffic Act or under Section 3 of the Customs Traffic Act read with Section 25 of the Customs Act. In this connection, it would be better if Section 8A of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construed as coming into operation immediately on the expiration of the day preceding its commencement, unless the contrary is expressed, is not applicable to the notifications issued by the Central Government as they are neither Central Act as per definition contained in Section 3(7) of the General Clauses Act nor Regulations as defined in Section 3(50) of the said act and being delegated legislation it can t have respective effect. In this context, we consider it proper to reproduce relevant portion of the judgment of the Hon ble Madras High Court dealt in similar situation in Ruchi Soya Industries Vs. Union of India (W.P. No. 21207 of 2018), decided on 14.07.2020, that placed reliance on the decision of the Andhra Pradesh High Court in W.P. No. 4533 4534 of 2019 decided on 28.09.2019 and has also been accepted by the Hon'ble Supreme Court as well as reproduced at para 58 of G.S. Chatha Rice Mills judgment. It reads: 58. With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification No. 5/2019, which is akin to the exercise of delega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed legislations and not enactment of the Parliament. The distinction available in Section 25 at Clause 4 is held by learned Commissioner (Appeals) to have been taken for the purpose of determination of the applicability of the notification i.e. coming into force of the notification to the date on which it was issued by the Central Government for publication in the official gazette. In other words, to him, notification may not be published in official gazette but date of issue of it by the Central Government to the publication division of the gazette of India would govern its applicability. In this context we are not in agreement with the Commissioner (Appeals) for two reasons. First, in Ruchi Soya case as referred above the concurrent view of both the High Courts of Andhra Pradesh High Court of Madras found approval of the Hon'ble Supreme Court in G.S. Chatha Rice Mills case, as noted in para 9 of this order and second, but never the less, significant reason for non-acceptance of the views of Commissioner (Appeals) is that Section 25 Clause 1 starts with the wordings that the Central Government if satisfied and found it necessary in the public interest can exempt certain co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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