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TMI Blog2019 (8) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the same day because goods were presented alongwith bill of entry. There is no writ petition where bill of entry was filed prior to entry inward of vehicle carrying imported goods. In all the present cases/writ petitions, the Petitioners placed import orders prior to 16.02.2019 and received goods in India on or before 16.02.2019, admittedly before the impugned Notification was issued/uploaded at 8.45 PM on 16.02.2019 after the working hours. If the impugned notification is made applicable to them, it would amount to retrospective application which is not permissible in law. Without going into vires of impugned notification, it is held that all the Petitioners would be liable to pay duty as was applicable at the time of filing of bill of entry coupled with the fact of the imported goods having entered territory of India on 16.02.2019 prior to the issuance of the impugned notification. The Respondent shall release goods within seven days on payment of duty as declared and assessed, if not already paid, ignoring the impugned N/N. 5/2019. Petition allowed. - CWP No. 11887 of 2019 (O&M) - - - Dated:- 26-8-2019 - MR JASWANT SINGH AND MR LALIT BATRA, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment process was in progress, however, prior to clearance of goods, on account of Pulwama Terrorist Attack, Central Government vide impugned Notification No. 5/2019 dated 16.02.2019 (Supra) issued at 20:46:58 Hrs (8.46 pm), as reflected in the E-gazette, increased the rate of duty to 200% even though various products were even completely exempt from Customs Duty. 3. It is claimed that the Ministry of Finance, Department of Revenue having issued a Notification No.05/2019-CUS. dated 16.02.2019 wherein First Schedule (hereinafter refers to as the said Schedule) to the Customs Tariff Act, 1975 was amended by exercising powers under sub section (1) of Section 8 A of the Customs Tariff Act, inserting a new tariff item and entries in the said Schedule by classifying all goods originating in or exported from the Islamic Republic of Pakistan under CTH 9806 0000 and prescribing standard rate of duty as 200% and Nil rate of duty for preferential areas. However, at 20:46:58 Hrs. on the same date i.e. 16.02.2019, 200% duty was imposed on the said goods vide above referred Notification ( P-7 ). The respondents refused to release the goods on the basis of Bill of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. Versus Union of India 2002 (150) ELT 3 (Kar.) which has been upheld by Hon ble Supreme Court; Adma Agro India Pvt. Ltd. Through Sampada Narang Vs. Union of India 2019-TIOL-1232-HC-AHM-CUS. It was contended that respondent without any objection accepted self assessment and generated duty payment challan. As per Section 17(4) of the Customs Act re-assessment could be made prior to acceptance of self assessment, therefore, assessment stood completed on the basis of old rates and respondent had no authority to apply new rate of duty which came into force after duty hours i.e. at 8:45 PM. It was also contended that Government on account of Pulwama attack initiated harsh economic action against Pakistan which included prohibition on import of goods from Pakistan. In the backdrop of intention of Government, levy of duty @ 200% amounts to prohibition of goods by way of delegated legislation and Hon ble Supreme Court in the case of DGFT versus Kanak Exports 2015 (326) E.L.T. 26 (S.C.) has held that delegated legislation or executive instructions cannot be made applicable from retrospective effect. The application of impugned notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -sections (3) and (4) of section 7 shall apply to any notification issued under sub-section (1) as they apply in relation to any notification increasing duty issued under sub-section (2) of section 7. SECTION 11A Power of Central Government to amend First Schedule.- ( 1) Where the Central Government is satisfied that it is necessary so to do in the public interest, it may, by notification in the Official Gazette, amend and First Schedule: Provided that such amendment shall not alter or affect in any manner the rates specified in that Schedule in respect of goods at which duties of customs shall be leviable on the goods under the Customs Act, 1962 (52 of 1962). ( 2) Every notification issued under sub-section (1) shall be laid, as soon as may be after it is issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise provided in section 85, self-assess the duty, if any, leviable on such goods. ( 2) The proper officer may verify the self-assessment of goods and for this purpose, examine or test any imported goods or exported goods or such part thereof as may be necessary: Provided that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria. ( 3) For the purposes of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any document or information, whereby the duty leviable on the imported goods or export goods, as the case may be, can be ascertained and thereupon, the importer, exporter or such other person shall produce such document or furnish such information. ( 4) Where it is found on verification, examination or testing of the goods or otherwise that the self-assessment is not done correctly, the proper officer may, without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. ( 2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. ( 3) The importer shall present the bill of entry under sub-section (1) before the end of the next day following the day (excluding holidays) on which the aircraft or vessel or vehicle carrying the goods arrives at a customs station at which such goods are to be cleared for home consumption or warehousing : Provided that a bill of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vessel or vehicle by which the goods have been shipped for importation into India: Provided further that where the bill of entry is not presented within the time so spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment; or ( c) in the case of deferred payment under the proviso to sub-section (1), from such due date as may be specified by rules made in this behalf, and if he fails to pay the duty within the time so specified, he shall pay interest on the duty not paid or short-paid till the date of its payment, at such rate, not less than ten per cent. but not exceeding thirty-six per cent. per annum, as may be fixed by the Central Government, by notification in the Official Gazette. Provided that the Central Government may, by notification in the Official Gazette, specify the class or classes of importers who shall pay such duty electronically: Provided further that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for payment of duty before the commencement of the Customs (Amendment) Act, 1991 and the importer has not paid such duty before such commencement, the date of return of such bill of entry to him shall be deemed to be the date of such commencement for the purpose of this section: Provided also that if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section. Emphasis supplied 7 . From perusal of above quoted Sections, it is evident that an importer is required to file a bill of entry as per the provisions of Section 46 of the Customs Act, 1962 at the time of arrival of goods, which can also be filed prior to entry inward of vehicle carrying goods. If bill of entry is filed prior to date of entry of a vehicle, the date of entry of vehicle in India is relevant date for the determination of tariff value and rate of duty as per the provisions of Section 15 of the Customs Act, 1962. An importer has to make self assessment regarding the duty, if any, leviable on such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bill of entry which can be presented even prior to arrival of goods. As per proviso to Sub- Section (1), the date of entry inward or arrival of vehicle is relevant date if bill of entry is filed in advance. The inevitable conclusion is that both elements i.e. entry of goods and presentation of bill of entry are equally important for determination, inter alia , of rate of duty. Applying principles/requirement of presentation of bill of entry and entry inward of vehicle in view of the provisions of the Section 15 of the Customs Act, 1962 on the present case, following different situations/categories arise: i) Bill of Entry is presented on or before 16.02.2019 even though goods have not arrived. ii) Goods arrived on or before 16.02.2019 but bill of entry is not presented on 16.02.2019. iii) Goods arrived on or before 16.02.2019 and bill of entry is presented on or before 16.02.2019. In case where bill of entry has been presented on or before 16.02.2019 but vehicle has not arrived by the said date, amended rate of duty would be applicable. In case goods have arrived on or before 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court has considered the question of change of rate during late hours on the same date, hence are distinguishable on facts. The facts of the present case are similar to the facts of the case in Param Industries (Supra ), which makes out a case in favour of the petitioners. 13 . That on account of peculiar and emergent situation, the impugned notification was issued whereby items even subjected to nil rate of duty are subjected to 200% rate of duty. The said rate cannot be called as simple increase in rate of duty. We agree with contention of the Counsel for the petitioners that 200% rate of duty actually amounts to prohibition of import of goods from Pakistan. Such a notification cannot be retrospective or applied retrospectively. Hon ble Supreme Court in the case of Kanak Exports (Supra ) has already held that delegated legislation cannot be made applicable from retrospective effect. In all the present cases/writ petitions, the Petitioners placed import orders prior to 16.02.2019 and received goods in India on or before 16.02.2019, admittedly before the impugned Notification was issued/uploaded at 8.45 PM on 16.02.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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