2019 (9) TMI 1374 - HC - Customs

Constitutional Validity of Section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016 - Increase in duty on crude palm oil from 30% to 44% - Electronic publication of notification versus publication of notification in the official gazette - Notification No.29/2018-Cus dated 01.03.2018 - infringement of fundamental rights of the petitioner to trade and otherwise - whether amended sub-section (4) of Section 25 of the Customs Act creates any amount of confusion, absurdity and contradiction to sub-sections (1) and (2A) of Section 25 of the Customs Act. If so, sub-section (4) of Section 25 of Customs Act be declared as arbitrary and illegal? HELD THAT - Section 25(1) of the Customs Act is not amended and according to Section 25(1) of the Customs Act, 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. But, Section 25(4) has been amended and the pre-amended and post-amended clauses are tabulated hereunder - As per pre-amended Act of Section 25(4), every notification issued under sub-section (1) or sub-section (2A) is deemed to have come into force on the date of issue of notification by the Central Government for publication in the official gazette. Clause (b) of the pre-amended Act further says that 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. Clause (b) of Section 25(4) of pre-amended Act is totally omitted and the notification is deemed to have come into force on the date of its issue by the Central Government for publication in the official gazette remained intact. Therefore, the pre-amended provisions of Sub-sections (1), (2A) and (4) are not reconciling with one another, but on account of deletion of Clause (b) of sub-section (4) of Section 25, a friction was created and both Sections 25(1), (2A) and 25(4) are not reconciling with one another - On account of amendment, such public interest becomes redundant or otiose and issuance of notification for publication in the gazette is sufficient. Therefore, there is any amount of inconsistency between Sub-sections (1), (2A) and (4) of Section 25 of the Act. The law declared by various courts is consistent and if a particular provision of law is amended in the enactment, notification in the official gazette for grant of exemption is mandatory and such exemption shall be given effect only from the date of publication in the official gazette - In the present case, an anomalous situation is created on account of amendment of sub-section (4) of Section 25 of Customs Act, keeping the public or at least the assessee totally in dark who are concerned with such notification issued for publication is an arbitrary exercise of power by the Legislature and it would cause not only inconvenience to the assessee or the person concerned with such notification, it is nothing but absurdity creating friction and it would also create any amount of confusion as to the rate of customs duty payable on the imported goods as on the relevant date of presentation of ex bond bills of entry for clearance for home consumption as per the Customs Act. When the amended provision or any provision of the statute creates serious inconvenience, serious absurdity, confusion or friction, contradiction and conflict between its various provisions, the same is illegal and amendment of sub-section (4) of Section 25 giving effect to the notification from the date of its issue for publication in the gazette is an arbitrary exercise of power by the Legislature and it is totally contrary to the purport of sub-section (1) and sub-section (2A) of Section 25 of the Act, which mandates publication of notification in the official gazette. Therefore, to avoid inconvenience, serious absurdity, confusion or friction, contradiction and conflict between various provisions, amended provision of sub-section (4) of Section 25 which is enacted by arbitrary exercise of power by the Legislature, is liable to be struck down. Sub-section (4) of Section 25 created absurdity, confusion and friction. The very collection of customs duty @ 44% on the imported goods belonging to these petitioners prior to the publication of notification in electronic mode is an illegality. Therefore, the petitioners are entitled to claim refund of the amount paid in excess of 30% of the original rate of customs duty as on the date of presentation of ex bond bills of entry for clearance of import goods for human consumption. Therefore, the respondents are liable to repay the excess amount which they collected from the petitioners beyond 30% of customs duty. Section 25(4) of the Customs Act is declared as arbitrary and contrary to Section 25(1) and (2A) of the Customs Act, 1962 and that the respondents are liable to repay the amount collected from the petitioners for clearance of import goods for home consumption beyond the original rate prevailing on the date of prior to date of publication of notification i.e. ₹ 2,88,16,200/- with interest paid by the petitioner from the date of deposit till the date of payment. Petition allowed.

Summary

Issues Involved:
1. Constitutionality of Section 25(4) of the Customs Act, 1962 as amended by the Finance Act, 2016.
2. Validity of Notification No.29/2018-Cus dated 01.03.2018.
3. Entitlement to a refund of customs duty paid under protest.

Issue-wise Detailed Analysis:

1. Constitutionality of Section 25(4) of the Customs Act, 1962:
The petitioner challenged the constitutionality of Section 25(4) of the Customs Act, 1962, as amended by the Finance Act, 2016, arguing it was arbitrary, illegal, and unconstitutional. The court examined whether the amended sub-section (4) of Section 25 created any confusion or contradiction with sub-sections (1) and (2A) of the same section. The court noted that sub-section (1) mandates that any notification for exemption must be published in the Official Gazette to inform the public. However, sub-section (4), as amended, stated that notifications would come into force on the date of issue for publication, which could lead to situations where the public is unaware of changes in duty rates. The court found this amendment created absurdity, confusion, and friction, making it difficult to reconcile with sub-sections (1) and (2A). Therefore, the court declared Section 25(4) as arbitrary and inconsistent with sub-sections (1) and (2A), rendering it unconstitutional.

2. Validity of Notification No.29/2018-Cus dated 01.03.2018:
The petitioner contended that Notification No.29/2018-Cus, which increased the customs duty on crude palm oil from 30% to 44%, was not valid as it was published in the Official Gazette only on 06.03.2018. The court examined the requirement for publication in the Official Gazette, noting that the purpose of such publication is to inform the public and ensure predictability and transparency in the law. The court referenced several judgments emphasizing the necessity of publication in the Official Gazette for a notification to take effect. The court concluded that since the notification was signed and published electronically only on 06.03.2018, it could not be deemed to have come into force on 01.03.2018. Therefore, the court held that the notification was not validly in force on the dates when the petitioner filed the Bills of Entry for clearance of the goods.

3. Entitlement to a Refund of Customs Duty Paid Under Protest:
The petitioner sought a refund of ?2,88,16,200/- paid under protest at the enhanced rate of 44%. The court noted that the relevant date for determining the rate of duty is the date of presentation of the Bills of Entry. Since the notification increasing the duty to 44% was not validly in force on the dates of the Bills of Entry, the petitioner was liable to pay only the original rate of 30%. The court found that the respondents had collected customs duty at the enhanced rate without legal basis and directed them to refund the excess amount collected, along with interest from the date of deposit till the date of payment.

Conclusion:
The court allowed the writ petitions, declaring Section 25(4) of the Customs Act as unconstitutional and invalidating Notification No.29/2018-Cus dated 01.03.2018. The respondents were directed to refund the excess customs duty collected from the petitioner.