2023 (5) TMI 261 - AT - Customs

Determination of effective date and time of implementation of Notification No. 93/2017-Cus. dated 21.12.2017 enhancing Customs duty - Desi Chick Peas - HELD THAT - After going through both the provisions in Section 25(1) (4) of Customs Act, it can only be stated that by virtue of the those provisions the legislation had empowered the Central Government to vary the Customs duty, to its satisfaction, when circumstance so demands and while Section 8A of the Customs Traffic Act prescribes or increase of import duties, Section 25 prescribes for exemption from application of import duties, on certain articles, when it is expedient to do so on public interest or to meet the circumstances. Apart from these thin line distinction, what remains in common is the standing of the Central Government to enter into the legislative domain through a delegated authority, vested on it by the Parliament and it is in respect of this position/standing of the Central Government s law making power. Both the notifications issued under Section 25 of the Customs Act and Section 8A of the Customs Tariff Act stand on similar footings for being delegated legislation for not being an Act or Regulation as has defined in the General Clauses Act, for which fraction of time could have been ignored and Section 5(3) of the General Clauses Act, 1897 would not be applied to these notifications, as otherwise contrary is expressed by way of insertion of deeming provisions in Regulation 4(2) of Regulation 2018, and in enabling provision of Section 46 of the Customs Act, while Section 15(1)(a), 17 Section 46(1) and 47(2)(a) Constitute one composite scheme. Re-assessment of duty post completion of self-assessment and out of charge order, on the basis of Notification No. 93/2017-Cus. published subsequent to such completion of assessment, is contrary to the provision of law. Appeal allowed.

Summary

Issues Involved:
1. Effective date and time of implementation of Notification No. 93/2017-Cus.
2. Applicability of Section 15(1) and Section 25 of the Customs Act, 1962.
3. Re-assessment of duty post self-assessment and out of charge order.

Summary:

Issue 1: Effective Date and Time of Implementation of Notification No. 93/2017-Cus.
The primary issue in this appeal is determining the effective date and time of Notification No. 93/2017-Cus dated 21.12.2017, which revised the Customs duty on "Desi Chick Peas" to 30%. The Appellant-importer had their bill of entry assessed at a 'nil' rate of duty under Notification No. 50/2017-Cus before the new notification was gazetted at 22:45 hours on the same day. The Original Authority reassessed the bill of entry under Section 17(4) of the Customs Act and imposed a 30% duty, which was upheld by the Commissioner of Customs (Appeals).

Issue 2: Applicability of Section 15(1) and Section 25 of the Customs Act, 1962
The Commissioner (Appeals) justified the reassessment by referring to Section 15(1)(a) and Section 25(4) of the Customs Act, 1962, stating that the rate of duty in force on the date of entry inwards of the vessel is applicable. The Commissioner distinguished the case from the Supreme Court judgment in Union of India Vs. G. S Chatha Rice Mills, which dealt with a notification under Section 8A(i) of the Customs Act, asserting that the present notification, issued under Section 25(1), came into force from the beginning of the date it was issued.

Issue 3: Re-assessment of Duty Post Self-assessment and Out of Charge Order
The Tribunal referred to the principles laid down by the Supreme Court in the G. S Chatha Rice Mills case, emphasizing that notifications issued by the Central Government are delegated legislation and cannot have retrospective effect unless explicitly stated. The Tribunal found that the reassessment of duty post self-assessment and out of charge order was impermissible, as the applicable rate of duty was crystallized at the time of the presentation of the bill of entry.

Conclusion:
The Tribunal concluded that the Commissioner (Appeals)'s finding on the application of Section 15(1) was erroneous and that the notification's effective date and time should be based on its publication in the official gazette. The reassessment of duty was deemed contrary to the provisions of law as interpreted by the Supreme Court in G. S Chatha Rice Mills. Consequently, the appeal was allowed, and the order passed by the Commissioner of Customs (Appeals) was set aside, with consequential reliefs including a refund of the duty paid upon reassessment.