2016 (2) TMI 1142 - HC - Customs

Notification dated 17th September, 2015 - date of notification coming into force - When did the notification dated 17th September, 2015 issued under Section 25(1) of the Customs Act come into force? - Held that - A reading of the Sub-section (4) as above may lead to the inference that every notification issued under sub-section (1) or sub-section (2A) shall come into force on the date of its issue by the Central Government for publication in the official gazette. This reading may appear to be slightly in conflict with sub-section (1), which provides that notification in the official gazette is required to grant the exemption. But this is not a conflict because the provision in sub-section (1) is qualified to that extent by sub-section (4). The notification comes into force when it is issued for publication in the official gazette. It is not dependent upon any further act, or activity. The mandate that the notification shall also be published and offered for sale by the Directorate of Publicity and Public Relation by the Board on the date of its issue by the Central Government is a follow up action. But nonetheless that follow up action has to be performed on the date of issue of the notification by the Central Government. There is thus ample evidence to hold that the mandate that the notification issued under sub-section (1) or sub-section (2A) shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relation of the Board was duly complied with. The writ petitioner cannot succeed because there is evidence which has remained uncontroverted to show that the notification was duly published in the official gazette on 17th September, 2015 and the notification was also offered for sale on 17th September, 2015 by the Directorate of Publicity and Public Relation of the Board. The notification came into force on 17th September, 2015 - appeal dismissed - decided against appellant.

Issues Involved:
1. Determination of the effective date of the notification issued under Section 25(1) of the Customs Act.
2. Compliance with the procedural requirements for the notification to come into force.
3. Interpretation of sub-sections (4) and (5) of Section 25 of the Customs Act.
4. Relevance and application of previous judgments and legal precedents.

Issue-wise Detailed Analysis:

1. Determination of the Effective Date of the Notification:
The primary issue in this case was to determine the effective date of the notification dated 17th September 2015 issued under Section 25(1) of the Customs Act. The appellant contended that the notification should be considered effective from 21st September 2015, the date it was offered for sale, whereas the Revenue argued it was effective from 17th September 2015, the date it was issued and published.

2. Compliance with Procedural Requirements:
The appellant argued that for a notification to come into force, three steps must be complied with: issuance by the Central Government for publication in the Official Gazette, publication in the Official Gazette, and offering for sale. They contended that the notification was only offered for sale on 21st September 2015, thus it should be effective from that date. However, the court found that the notification was indeed issued, published, and offered for sale on 17th September 2015, as evidenced by the affidavit from the Directorate of Publicity and Public Relations.

3. Interpretation of Sub-sections (4) and (5) of Section 25:
The appellant's interpretation required compliance with both sub-sections (4) and (5) of Section 25, suggesting that the notification must be offered for sale before it can come into force. The court, however, clarified that sub-section (4) alone determines the effective date, which is the date of issue for publication in the Official Gazette. Sub-section (5) pertains to notifications intended to become operative at a future date, and thus was not applicable in this case.

4. Relevance and Application of Previous Judgments:
The appellant relied on the judgment in Param Industries Ltd. v. Union of India, which was affirmed by the Supreme Court. However, the court distinguished this case, noting that the issues considered by the Karnataka High Court and the Supreme Court were different. The court emphasized that the presumption of correctness under Section 81 of the Evidence Act and the regular performance of official acts under Section 114 of the Evidence Act supported the Revenue's position.

Conclusion:
The court concluded that the notification dated 17th September 2015 came into force on the same date, as all procedural requirements were met. The appeal was dismissed, and the appellant was held liable to pay the duty at the rate of 12.5%, as per the notification effective from 17th September 2015. The court emphasized that the notification's issuance, publication, and offering for sale on the same date were sufficient to bring it into force, rejecting the appellant's contentions based on the later date of sale availability.

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