2022 (12) TMI 623 - HC - Customs

Increase in rate of customs duty on import of dry dates - Effective date - Filing of Bill of Entry prior to the issue of notification - goods imported from Pakistan were subjected to 200% duty - Case projected on behalf of the petitioner was that the impugned Notification dated 16.02.2019 can only be prospective in operation. - HELD THAT - In Paragraphs 7 and 8 of the writ petition, there are specific averments to the effect that the petitioner had filed a checklist Bill of Entry, which was filed by the Clearing House Agent of the petitioner in the online EDI Portal of Customs wherein Job No. 3568 dated 16.02.2019 was allotted, seeking clearance of the goods for home consumption. In support of such assertion, a copy of the checklist copy of Bill of Entry stands appended and placed on record as Annexure P Still further in Paragraph 8 of the writ petition, there is a positive assertion that the goods in question had arrived before 18.00 hours on 15.02.2019 and the IGM (Import General Manifest) was filed on 16.02.2019 and the checklist Bill of Entry having also been filed on 16.02.2019. Under such circumstances, generation of the Bill of Entry would be seen as a mere procedural fallout. Revenue is not in a position to controvert that the petitioner has placed the import orders prior to 16.02.2019 and has also received goods on or before 16.02.2019 and in any case prior to issuance of the impugned notification which was uploaded on 16.02.2019 at 8.45 p.m. Following the decision in M/s Rasrasna Food Pvt. Ltd. 2019 (8) TMI 1400 - PUNJAB AND HARYANA HIGH COURT , the writ petition is allowed

Summary

Issues:
1. Challenge to Notification No. 05/2019-Cus. dated 16.02.2019.
2. Retroactive application of the impugned notification.
3. Validity of the impugned notification in relation to the Customs Tariff Act, 1975.
4. Distinction based on the generation of the Bill of Entry on the day in question.

Analysis:
1. The petitioner was issued an Importer-Exporter Code for importing items, including dry dates and ingredients for food items from Pakistan. After self-assessment and payment of Customs Duty, a notification was issued imposing 200% duty on goods imported from Pakistan on the same day as the import. The petitioner sought directions for the issuance of a Bill of Entry number and challenged the legality of the notification.

2. The Co-ordinate Bench had previously ruled in a similar case that the impugned notification cannot be applied retrospectively. The petitioners had placed import orders and received goods before the notification was issued, making any retrospective application impermissible in law. The Supreme Court affirmed this view, emphasizing that duty should be paid as applicable at the time of filing the Bill of Entry, releasing the goods within seven days.

3. The respondent argued against the retrospective operation of the notification but attempted a technical objection regarding the generation of the Bill of Entry on the same day. However, the court found this objection ill-founded as the petitioner had filed a checklist Bill of Entry on the day of import, with specific details supporting the timely arrival of goods and filing of necessary documents. The generation of the Bill of Entry was considered a procedural formality, not affecting the applicability of the judgment.

4. The court upheld the petitioner's claim based on the previous judgment, confirming that the petitioner had placed import orders before the notification date and received goods before its issuance. The writ petition was allowed in line with the earlier decision, emphasizing the importance of the timing of import orders and goods receipt in relation to the notification's issuance.