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2017 (5) TMI 742 - HC - CustomsEffect of N/N. 1/2013 Custom dated 21.01.2013 - prospective effect or retrospective effect? - import of gold - case of petitioner is that the customs duty at the prevailing rate of 4.12% in terms of N/N. 12/2012 Cus dated 17.03.2012 was already deposited and the N/N. 1/2013 Customs dated 21.01.2013 cannot be applied retrospectively to the goods already cleared - Held that - On plain reading of sub-section (4)(a) of section 25 of CA it can be inferred that the notification comes into force from the date it is issued by the Central Government for publication in the Official Gazette; but it is equally obligatory that the same shall also be published and offered for sale on the date of issue by the Directorate of Publicity and Public Relations of the Board. Thus the legislature had envisaged a common date of coming into force of the notification and date of publication and sale and hence the expression the date of issue is required to be construed accordingly viz. when the notification is issued and is published and offered for sale - the respondents cannot be heard to contend that sub-section (4)(b) of section 25 of the Act is only directory and not mandatory. The facts emphasized in the present case reveal that the N/N. 1/2013 Customs dated 21.01.2013 was received by the government press on 21.01.2013 at 9.45 p.m. printed on 01.02.2013 and sent to Kitab Mahal on 04.02.2013. Clearly therefore the N/N. 1/2013Customs though issued on 21.01.2013 was neither published in the official gazette nor was offered for sale on the said date and therefore would not come into force and be operative from 21.01.2013. Under the circumstances the said notification cannot be made applicable to the goods imported by the petitioner which were cleared on 21.01.2013. Petition allowed - decided in favor of petitioner.
Issues Involved:
1. Applicability of Notification No. 1/2013Customs dated 21.01.2013. 2. Interpretation of Section 25(4)(a) and (b) of the Customs Act, 1962. 3. Relevance of the timing of publication and sale of the notification. 4. Comparison with precedents and judicial interpretations. Issue-wise Detailed Analysis: 1. Applicability of Notification No. 1/2013Customs dated 21.01.2013: The writ petition challenges the communication directing the petitioner to deposit differential customs duty due to a change in the rate of customs duty from 4% to 6% as per Notification No. 1/2013Customs dated 21.01.2013. The petitioner had imported 200 kilograms of gold and paid customs duty at the prevailing rate of 4.12% on 21.01.2013, before the notification was received by the press at 9:45 p.m. on the same day. The petitioner contended that the notification could not be applied retrospectively to goods already cleared. 2. Interpretation of Section 25(4)(a) and (b) of the Customs Act, 1962: The petitioner argued that according to Section 25(4)(a) and (b) of the Customs Act, 1962, a notification comes into force on the date of its issue and must also be published and offered for sale on the same date. The notification in question was not printed in the Official Gazette until 01.02.2013 and was dispatched to Kitab Mahal on 04.02.2013. Thus, it did not meet the requirements to be effective on 21.01.2013. 3. Relevance of the Timing of Publication and Sale of the Notification: The petitioner relied on the Supreme Court's judgment in Union of India v. Param Industries Ltd., which held that for a notification to be effective, it must be published in the Official Gazette and offered for sale on the date of issue. The respondent argued that the notification's effect was immediate upon issuance for publication, and the subsequent publication and sale were merely procedural. 4. Comparison with Precedents and Judicial Interpretations: The respondent distinguished the present case from Param Industries Limited by stating that the facts differed, and the notification in the current case was sent for publication on the same day it was issued. The respondent also cited judgments in Agarwal Industries Limited v. Union of India and Ruchi Soya Industries Limited v. Union of India to support their stance that the notification was effective upon issuance. Judgment: The court found that the provisions of Section 25(4)(a) and (b) are intrinsically connected and must be read together. The notification must be published and offered for sale on the date of issue to be effective. The court agreed with the petitioner's reliance on the Param Industries Limited case, where the Supreme Court held that both conditions are mandatory for a notification to come into force. Since the notification in question was not published and offered for sale on 21.01.2013, it could not be applied to the petitioner's goods cleared on that date. The court quashed the impugned communication dated 16.10.2015, directing the petitioner to deposit the differential customs duty, and made the rule absolute to that extent.
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