TMI Blog2002 (9) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... into effect from 3-8-2001, the tariff value in respect of RBD Palmolein had been raised to 372 US$ per metric ton and therefore the petitioners were liable to pay the difference in the tariff as they had paid the tariff as per the earlier notification. Being aggrieved by the said demand and the alleged notification, the Writ petitions were filed challenging the same alleging that the said notification was not published in the Gazette on 3-8-2001 and the RBD Palmolein which had been imported by the petitioners had been subjected to duty as per the prevalent tariff rate and the alleged Gazette notification must have been published on 6-8-2001. It is stated that the notification received at Cochin Customs Authorities was notification which was required to be published in the Official Gazette and the same was received on 3-8-2001 at 11.44 p.m. and therefore the publication in the Gazette was not made on 3-8-2001 and the change in the rate of tariff was not brought to the notice of the petitioners and even the customs authorities were not aware of the said change and since 4th and 5th August were Saturday and Sunday which were public holidays, the publication must have been made after 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are now insisting to pay 25% of the value of the goods to be released as Bank Guarantee in remaining cases and for that he submitted that as goods are going to perish, in the circumstances, the Appellants agreed to furnish 25% of the value of the goods to be released as Bank Guarantee. It was ordered to release the goods without prejudice to the pending Contempt Petition and to post the matter in March, 2002. Thereafter, on 18-4-2002 it was prayed that as per the orders, the Appellants may be permitted to re-export the balance of imported goods on the ground that since Appeals are pending the Respondents are not considering the Applications though granted in other cases. However, learned Central Government Standing Counsel has agreed that they will consider the Applications as per law and this Court clarified that the pendency of the Appeals will not preclude the Authority to consider and grant permission for re-exporting the goods, if permissible in law. Permission was granted. In contempt case however, as agreed by the parties, Writ Petitions, Contempt Petition as well as Writ Appeals were directed to be heard together at an early date. 5The. respondents have filed objection st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.Learned Counsel for the petitioners submits that the alleged notification was sent to be published in the Gazette and was available on the internet site www.cbec.gov.in of the respondent department, but the same was not available up to 4-8-2001 and notification is also bad as it does not include other classes of goods and only palmolein oil is singled out for additional tariff and trend of value of goods is not taken into account. 10.The learned Counsel for the respondents submitted that the notification dated 3-8-2001 was published in the Gazette on 3-8-2001 itself and therefore in view of the provisions of Section 14 the goods imported by the petitioners were liable to duty as per notification dated 3-8-2001 which has come into effect on the same day and therefore the petitioners are liable to pay differential duty as demanded by the respondents and there is no merit in the contention of the learned Counsel for the petitioners that the notification was not published on 3-8-2001 and that it was published only after 6-8-2001 and therefore the writ petitions are liable to be dismissed. 11.In the instant case, the point for determination is as to whether the Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gazette was made available for public sale on 6-8-2001 as per the records of the department. The issue number of the customs Notification No. 36/2001-Cus. (N.T.), dated 3-8-2001 being 549, it is clearly established that the said Notification was made available for public sale on or after 6-8-2001, and therefore, the question of publication of the notification dated 3-8-2001 on the same day does not arise. It is also to be seen that on the basis of Bill of Entry for Home Consumption assessment was completed. Under the circumstances, no inference can be drawn that the notification dated 3-8-2001 was gazetted on the same day itself. It is also to be seen that the Parliament has added sub-sections (4) and (5) to Section 25 of the Customs Act by Act No. 25 of 1998 w.e.f. 1-6-1998, prescribing that unless otherwise provided, every notification issued under Section 25(1) shall come into force on the date of its issue by the Central Government for publication in Official Gazette with the further stipulation that such notification shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. This clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India Press to publish the same in the Official Gazette and there is no record further to show that pursuant to the said letter Gazette notification was published on 3-8-2001 itself. But on a perusal, it is clear from Annexure R1 that the date 6-8-2001 has been overwritten as 3-8-2001 and that apart in the letter sent to the Government of India Press on 3-8-2001 the said overwriting has not been attested or explained in the affidavit. Be that as it may. What is produced is the xerox copy of the letter and therefore the said letter is not helpful to show that it was published in the Gazette on 3-8-2001 itself in the Gazette on the same day and on the other hand it would help the petitioners' contention. 13.It is also to be seen that once on the basis of Bill of Entry for Home consumption, the assessment has been made as per the earlier notification dated 1-3-2001, the rate as per the new notification i.e., notification dated 3-8-2001 is not attracted. Merely on the basis of notifying in Website and showing a letter addressed to the Manager, Government of India Press on 3-8-2001, without actual publication of the Notification in the Gazette, it cannot be presumed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 constituting only a part of the class of goods being vegetable oils under chapter Heading 15 of the Tariff Act. Clearly a large number of other vegetable oils such as Sunflower, Safflower, Cotton seed, Soyabean, all of which form part of the same class of goods as the goods notified vide the impugned Notification No. 36/2001-Cus. (N.T.), dated 3-8-2001, have been left out. Such a discriminatory fixation of trend value for only part of class of goods is not authorised by statute and in the absence of any reasonable explanation and materials placed on record to satisfy the Court justifying that the same has been issued after due application of mind and objective satisfaction, the notification is not sustainable. 16.In view of the above, Writ Petitions are allowed. The petitioners would be entitled to cancellation of security and bank guarantee furnished as per the conditions of the interim order and for the reasons stated above. The impugned notification is set aside and the demand in consequence of the said notification is also set aside. Writ Appeals pertain to interim order in the Writ Petitions. As the writ petitions are allowed no further order is necessary in the writ appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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