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TMI Blog1984 (2) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... however, rejected it because he said the claim under the ad hoc order No. 404 of 29-9-1975 was a new claim, the original claim being under Notification No. 115 and was therefore a shift in ground. The shift in ground constituted a fresh claim which would be time-barred. He felt that he was precluded from considering the appeal and so he rejected it vide his order No. S/49-812/76GS, dated 29-1-1977 (this order bears an inscription that it was dispatched on 18-12-1976, that means three weeks before it was written). 2. The Food Corporation has now appealed and we are to consider this appeal against the above order of the Appellate Collector. The main argument in the appeal is that there was no shift in the ground as held by the Appellate Collector because the initial claim was lodged with the Assistant Collector on 15-7-1975 and the correct Notification under which this consignment was exempted from duty was intimated to him in their letter dated 21-11-1975 which was in continuation of their original claim dated 15-7-1975, and that both the dates were prior to rejection by the Assistant Collector. The appeal was heard on 17-1-1984 during which the learned Counsel for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospectively but it is not permissible for the Government to legislate with such retroactivity. The notification furthermore had a condition that the goods had been used as fertilizers and a certificate was required to be produced within six months or such extended time as might be granted by the Collector of Customs. These conditions could not be fulfilled at the time of the importation because the notification was not in existence then and it is not possible for the conditions to be fulfilled later once the goods have been cleared. He, however, stated that the time-bar would not affect a refund claim that might be made under ad hoc notification 404. The learned Counsel submitted that sub-section 2 of section 25 of the Customs Act, 1962 was made only for giving exemption and is not meant for remission of duty. The exemption, if extended now, would be a remission of duty and not an exemption of duty. He quoted decision in AIR 1963 S.C. 274 in which it is held that Article 265 was the source and basis for taxation. According to Counsel this source of the power to tax does not confer on the Government the power to exempt with retrospective effect. The law framed for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts (Regulation) Act, 1952 assigning functions to the Forward Markets Commission. The dissenting judgment ended by saying that the Government had no power under Section 12 of the Act to make a bye-law assigning any function to the Commission. The majority decision however held that the section contemplated the making of a bye-law regulating the performance of contracts and termination of the same and this could obviously refer only to bye-law affecting rights under contracts which are subsisting on the day the action was taken. The Court held that Section 11 authorised the framing of a bye-law which would operate retrospectively in the sense that it affects rights of parties under subsisting contracts. The question decided upon by the Court in that case, therefore, was whether the provisions of the Act viz. the Forward Contracts (Regulation) Act, 1952 empowered the framing of a bye-law which would operate retrospectively. In 1 SCR 1981 627 the Supreme Court dealt with a question of whether the State Government, as the delegate could make retrospective rules when the legislature had not empowered it to do so. To make retrospective law the delegate required special conferment spelt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment was 1983 E.L.T. 549 in which the Tribunal held that the Central Government had no power to grant exemptions with retrospective effect but this was a case in which there was no question of giving retrospective effect to a Notification. It was a case of the appellant asking that an exemption notification No. 118/75-C.E. be given retrospective effect so that he would get its benefit. The Tribunal rejected this request. 5. To understand the discussion we should like to reproduce the Section 25 of the Customs Act, 1962 which reads as under : 25(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. (2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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