2018 (9) TMI 1676 - AT - Customs

Effective date of Notification 79/2008-Cus. dated 13.6.2008 enhancing the rate of Export Duty - On 13.6.2008, the goods were cleared for export after issuance of let export order. On the same date, Notification was issued, but was offered for sale on a later date - Effect of Notification - Held that - The notification will come into force only after clause (b) of sub-clause (4) of Section 25 is also satisfied - In the present case, the information received under RTI Act from the Government of India Press shows that the notification was offered for sale or sent to the department only on 27.6.2008. Therefore, the notification cannot be said to have come into effect from 13.6.2008. It is pleaded by the appellant that the said information was received by the appellant only after filing the appeal and has prayed that the said document may be received as part of evidence - there are no reasons to discard the plea put forward by the appellant for the simple reason that the said information is a document issued under RTI Act by the concerned officer who is the CPIO and is authorized to issue such information. The issue as to when the notification would take its effect and the necessity for fulfilling the conditions in sub-clause (4) of Section 25 of the Customs Act has been addressed by the Hon ble Supreme Court in the case of Param Industries Ltd. 2015 (6) TMI 732 - SUPREME COURT , where it was held that Though the notification may have been published on the date when the goods were cleared, it was not offered for sale by the concerned Board, which event took place much thereafter. Therefore, it was not justified and lawful on the part of the Department to claim the differential amount of duty on the basis of said notification. Thus, the notification has not come into force on 13.6.2008 and therefore the appellant cannot be compelled to pay higher rate of duty as per the notification - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Notification issued increasing export duty rate after goods were cleared for export
- Appellant's contention on payment of duty at the prevailing rate
- Legal interpretation of Section 25 of the Customs Act, 1962
- Effectiveness of the notification and conditions for its application
- Applicability of relevant case laws on notification publication

Issue 1: Notification issued increasing export duty rate after goods were cleared for export
The appellants exported iron ore lumps paying duty at ?300/- per MT. Subsequently, a notification was issued increasing the duty rate to 15% ad valorem per MT. A demand notice for differential duty was issued, leading to the appeal.

Issue 2: Appellant's contention on payment of duty at the prevailing rate
Appellant argued that they paid duty correctly based on the prevailing rate at the time of let export order issuance. They highlighted the discrepancy in timing between the let export order and notification publication, emphasizing compliance with Section 25 of the Customs Act.

Issue 3: Legal interpretation of Section 25 of the Customs Act, 1962
Section 25 mandates that notifications come into force upon publication in the Official Gazette and being offered for sale. The Tribunal emphasized the importance of fulfilling both conditions for a notification to be effective.

Issue 4: Effectiveness of the notification and conditions for its application
The Tribunal considered information obtained under the RTI Act, showing the notification was offered for sale after the goods were cleared. This led to the conclusion that the notification did not come into effect on the date of issuance, supporting the appellant's argument.

Issue 5: Applicability of relevant case laws on notification publication
Citing judgments like Union of India Vs. Param Industries Ltd., the Tribunal affirmed that notifications must be published and offered for sale promptly to be enforceable. Rulings in similar cases were referenced to support the appellant's position.

In conclusion, the Tribunal allowed the appeal, finding that the notification did not come into force on the date of issuance. The demand for higher duty was deemed unjustified, setting aside the impugned order and granting relief to the appellant. The decision was influenced by the legal interpretation of Section 25 and the necessity for timely notification publication as established in relevant case laws.