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TMI Blog2023 (5) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry No. 4152457 dated 25.11.2017 for clearance of 239.02 MTs. of "Desi Chick Peas" imported from Singapore with a declare assessable value of Rs.1,25,85,308/- and claimed 'nil' rate of duty in terms of Notification No. 50/2017-Cus. referred above. Arrival of the vessel in the port was reported to be on 21.12.2017, on which date the bill of entry was assessed at 'nil' rate and out of charge order was issued at 4:51 p.m. On the same day, Government of India published Notification No. 93/2017-Cus. at 22.45 hours revising the rate of duty of the goods in question to 30% from 'nil' rate of duty granted under Notification No. 50/2017-Cus., in exercise of the power conferred on it under Section 25 of the Customs Act, 1962. Taking support of provision of Section 15(1)(b), Section 25(4) of the Customs Act, the bill of entry was re-assessed under Section 17(4) of the Customs Act and Appellant was asked to pay the duty at 30% of the assessable value by the Original Authority vide his order dated 28.11.2019 Appellant's unsuccessful attempt before the Commissioner of Customs (Appeals), Mumbai-II has brought the dispute to this forum. 3. We have heard the matter at length from both the sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples laid by the Hon'ble Supreme Court in the judgment of G. S Chatha Rice Mills and thereafter its application to the facts of the present appeal is to be examined. 6. Before going into detail of the principles laid down in the judgment, it is imperative to have a look at the findings of the Commissioner (Appeals) who had rejected the Appellant's plea on the following grounds- (a) Learned Commissioner (Appeals) had placed his reliance on relevant portions of Section 15 of the Customs Act, 1962 that reads as hereunder:- "Section 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) ...... (c) ...... [Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft (or the vehicle) by which the goods are imported, the bill of entry shall be deemed to have been presented on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latently or patently. In our considered view, paragraph 35 & 36 of the judgment in G.S. Chatha Rice Mills contains the answer to this query that formed the first ground of rejection of the appeal in the order of the Commissioner (Appeals). Referring to the submissions of the learned ASG, it was said: "35. Mr. Natraj is textually right when he emphasizes that Section 15(1) contains a reference to date and not time. But there are two responses to his line of approaching the issue. First, the legislature does not always say everything on the subject. When it enacts a law, every conceivable eventuality which may arise in the future may not be present to the mind of the lawmaker. Legislative silences create spaces for creativity. Between interstices of legislative spaces and silences, the law is shaped by the robust application of common sense. Second, regulatory governance is evolving in India as new technology replaces old and outmoded ways of functioning. The virtual world of electronic filings was not on the horizon when Parliament enacted the Customs Act in 1962. Yet the Parliament has responded to the rapid changes which have been brought about by the adoption of technology in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is presented for home consumption under Section 46. The submission of the Union cannot be accepted in view of the provisions contained in Section 46 for the presentation of a bill of entry for home consumption in an electronic form on the customs automated system. While making that provision, specifically by means of an amendment by Act 8 of 2011 and later by the Finance Act of 2018, Parliament used the expression "in such form and manner as may be prescribed." Regulation 4(2) of the Regulations of 2018 provides when the bill of entry shall be deemed to have been filed and self-assessment completed. The legal fiction which has been embodied in Regulation 4(2) emanates from the enabling provisions of Section 46. The provisions of Sections 15(1)(a), 17, 46(1) and 47(2)(a) constitute one composite scheme. As a result of the modalities prescribed for the electronic presentation of the bill of entry and self-assessment after the entry of the electronic declaration on the customs automated system, a bill of entry number is generated by the EDI system for the declaration. Regulation 4(2) provides for a deeming fiction in regard to the filing of the bill of entry and the completion of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government shall not issue any notification under this subsection for substituting the rate of import duty in respect of any article as specified by an earlier notification issued under this sub-section by that Government before such earlier notification has been approved with or without modifications under sub-section (2). (2) The provisions of sub-sections (3) and (4) of Section 7 shall apply to any notification issued under sub-section (1) as they apply in relation to any notification increasing duty issued under sub-section (2) of Section 7." (emphasis supplied) 9. After going through both the provisions it can only be stated that by virtue of the those provisions the legislation had empowered the Central Government to vary the Customs duty, to its satisfaction, when circumstance so demands and while Section 8A of the Customs Traffic Act prescribes or increase of import duties, Section 25 prescribes for exemption from application of import duties, on certain articles, when it is expedient to do so on public interest or to meet the circumstances. Apart from these thin line distinction, what remains in common is the "standing of the Central Government" to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, as has been held in the G.S. Chatha Rice Mills case relevant extract of which is already reproduced in the preceding paragraph 7.36, referred above that should be read with Section 8 of the Information Technology Act, 2000 concerning the effect of notifications issued in e-gazette vis.-avis. Section 13 of the Information Technology Act that prescribes time and place of dispatch and receipt of Electrics record as well as publication of e-gazette under Section 8 of the Information Technology Act, 2000. 11. Now coming to the second ground of rejection, as referred in para 6(b) above, it could be said that in both Section 8A of the Customs Traffic Act and Section 25 of the Customs Act, it has been clearly stipulated that such notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision contained in Section 25(1) prescribing publication of notification in the official gazette as a pre-condition for exemption of duty or its withdrawal as has been case here. 12. It is, worth-mentioning here, that without making any observation as to the legality of the re-assessment of duty, after goods were finally assessed at 'nil' rate of duty, prior to issue of Notification No. 93/2017-Cus. under Section 25 of the Customs Act lifting the exemption on "Desi Chick Peas" the Commissioner (Appeals) had confirmed the adjudication order whereby 30% Customs duty was imposed on reassessment. On this aspect he had completely ignored the findings of the Hon'ble Supreme Court in G.S. Chatha Rice Mills case wherein both Hon'ble Dr. D.Y. Chandrachud.J. as he then was and Hon'ble K.M. Joseph.J in separate concurring judgments, have clearly noted that re-assessment under Section 17 of the Customs Act was impermissible for the reasons that self-assessment was completed on the basis of rate of duty which was inforce on the date and at the time of presentation of the bill of entry for home consumption as the applicable rate of duty was crystalized at the time and on the date of present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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