2017 (3) TMI 632 - AT - Customs

Increase in the rate of duty - Effect of N/N. 1/2013-Cus. Dated 21.01.2013 amending the N/N. 12/2012-Cus dated 17.03.2012, which had the effect of increasing the basic Customs duty from 4% to 6% - prospective effect or retrospective effect? - whether demand of differential duty justified, as the date on which the goods were assessed and cleared was 21.01.2013, but assessee claims that the said Notification was published in the Official Gazette only on 04.02.2013 and as such no differential duty arises on the import made on 21.01.2013 - Held that - Notification 01/2013 dated 21.01.2013 which had affect on rate of duty, was sent for publication after the office hours of 21.01.2013 and was in fact printed and made available for public only on 04.02.2013. There is no dispute on these facts - admittedly the Notification was printed, published and offered for public only on 04.02.2013 as such the affect of the Notification cannot be given to any day prior to that date - demand of differential duty unjustified - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Applicability of amending Notification dated 21.01.2013 on imported goods cleared on the same day.

Analysis:
1. The appeal challenged an order by the Commissioner of Customs regarding the differential duty of Customs on imported Gold Bars. The appellants imported the goods and filed a bill of entry on 21.01.2013. The government issued Notification 1/2013-Cus on the same day, amending the Customs duty rate from 4% to 6%. The department sought to recover the differential duty from the importer due to the amendment being effective on the date of assessment and clearance of the goods.

2. The appellant contended that the amending Notification could not be enforced from the same day as it was published in the Official Gazette only on 04.02.2013. Supporting documents were filed to substantiate this claim. The Tribunal examined the facts and referred to Section 25(4) of the Customs Act, 1962, which outlines the requirements for the publication and offer for sale of Notifications. The Tribunal cited a Supreme Court decision (Param Industries Ltd. 2015) emphasizing the mandatory conditions for bringing a notification into force, including publication in the official gazette and offer for sale on the date of issue.

3. It was established that the amending Notification was printed, published, and made available to the public only on 04.02.2013, not on the date of import clearance. Therefore, the Tribunal concluded that the differential duty demand on the appellant was not legally sustainable. The impugned order was set aside, and the appeal was allowed, ruling in favor of the appellant.