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TMI Blog2020 (7) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in M.D.Overseas Ltd. (supra) does not appear to be suffering from any legal infirmity, nor any material or argument has been placed before us to take a different view in the matter. We, therefore, accept the contention of the learned counsel for the petitioner on this count. The respondents are directed to refund the entire excess amount paid by the petitioner as enhanced duty under protest, including the IGST amount, within a period of two months from today - petition allowed. - W.P.No.21207 of 2018 - - - Dated:- 14-7-2020 - HON'BLE MR. A.P.SAHI, CHIEF JUSTICE AND HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY For Petitioner : Mr. Rajesh Rawal for M/s. V. Pushpa For Respondents : Mr. V. Sundareswaran ORDER THE CHIEF JUSTICE The petitioner, a public limited company, has challenged the Notification issued by the respondent Customs Department dated 1.3.2018 under Section 25 of the Customs Act, 1962 on several grounds that relate to the transaction of import of Crude Vegetable Oils in bulk by the petitioner company for manufacture of Soya Food products. The petitioner company entered into a contract on 15.1.2018 with its foreign supplier in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .9.2019 and a copy of the judgment has been placed before the Court. 7. The present writ petition was entertained and the following order passed on 11.11.2019: The learned counsel for the petitioner states, on the basis of the instructions received, that similar issue has been answered by the Andhra Pradesh High Court and she seeks time to place the judgment before this Court on the next date of hearing. Put up on 26.11.2019. 8. The respondents were again called upon to assist the Court and the following order came to be passed on 26.11.2019: The challenge raised in this Writ Petition is to the vires of Sub Section (4) of Section 25 of the Customs Act, 1962 as amended by the Finance Act, 2018 on the ground that it runs counter to the letter and intent of the provisions of Section 25(1) of the Customs Act, 1962 and therefore, the same should be declared as ultra-vires. The contention is that the provisions of Section 25(1) of the Customs Act requires the issuance of notification with regard to grant of exemption or otherwise in public interest by notification in the Official Gazette. Sec.25(1) of the Customs Act is quoted hereunder for ready reference: 25. Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1897, which defines Official Gazette or Gazette as the Gazette of India or the Official Gazette or a State and the provisions of Section 3(19-A) of the General Clauses Act, 1891, as adopted in this State under the Tamil Nadu General Clauses Act, 1897, which defines notification as a notification published in the Official Gazette . 6. Thus, in order to give a form of impetus including the enforceability, the source and mode of knowledge to the assessee or to the public at large has to be by a defined method which is by publication in the Official Gazette. The submission therefore is that if any notification has to be by way of Gazette, then, publication thereof is an answer without which the publication would be incomplete and would not amount to knowledge either to the affected person or the public at large. 7. The question therefore raised is that this power which inheres in the Central Government to withhold a publication and at the same time to enforce it from the date of issuance without any such mode of knowledge either to the assessee or to the public at large amounts to arbitrary, retention of power by the Central Government or by not only violating the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the close of the notification, the following endorsement appears: Rakesh Sukul: Digitally signed by Rakesh Sukul Date 2017.08.28 22:47:05+5 30 26. The petitioners have also filed, with the writ petition, a purported screenshot of the website of the Ministry of Commerce on 25th August, 2017, which does not reflect the aforesaid two Notification Nos. 24 and 25. 27. Mr. Manik Dogra, learned CGSC for Respondent No. 1, however, contends that, as per his instructions sans, however, any supporting material the impugned notifications had, in fact, been uploaded on the website of the DGFT on 25th August, 2017 itself. 28. We do not think so. 29. In any event, however, as the notifications would become enforceable only from the date of their publication in the Official Gazettee, the aspect of whether they were, or were not, uploaded on the website of the DGFT on 25th August, 2017, loses its significance. 30. Section 8 of the Information Act, 2000 (hereinafter referred to as the IT Act ) reads thus: 8. Publication of rule, regulation, etc., in Electronic Gazette.- Where any law provides that any rule, regulation, order, bye-law, notification or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h August, 2017 were, in fact, electronically published in the Official Gazetee only at or after 10:47 p.m. on 28th August, 2017. 33. It has been conclusively held, by the Supreme Court, in a catena of decisions including Harla v. State of Rajasthan2 , B.K. Srinivasan v. State of Karnataka3 and U.O.I. v. Param Industries4 that, notifications would come into force on their publication in the Official Gazettee, i.e. in the present case, with effect from the date and time when they were electronically printed in the Gazettee, which was at or after 10:47 p.m. on 28th August, 2017. 34. The imports of the gold coins by the petitioners in these writ petitions took place prior thereto. 4. Having gone through the pleadings, we hardly find any distinction to draw on the legal issues so advanced. It is stated by the learned counsel for the respondents that the petitioner has already made the payments pursuant to the imposition, which, learned counsel for the petitioner contends that was clearly under protest. 5. There is hardly any dispute on facts and the legal issue which has to be resolved. Granting indulgence of time has already consumed almost four months in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. This counter affidavit was however filed in December, 2018, much before the judgments of the Delhi High Court and the Andhra Pradesh High Court came into existence. Rejoinder to the said counter affidavit had also been filed, which is on record. 13. Learned counsel for the Union of India contended that the plea raised by the petitioner is not tenable, in as much as the publication will date back from the date on which it was uploaded in the website and, therefore, that having been done on 1.3.2018, the petitioner cannot claim any such benefit. 14. Learned counsel for the Union of India further submits that no ground at all has been made out for seeking a declaration as sought for and, hence, the writ petition deserves to be dismissed. 15. Confronted with the aforesaid two decisions of the Delhi High Court and the Andhra Pradesh High Court, we wanted the learned counsel for the respondents to throw light on the issues raised so as to enable us to take a different view, but the learned counsel for the respondents failed to convince us to opine otherwise against the logic and the reasoning given by the two High Courts in the judgments referred to by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the website of the DGFT on 25th August, 2017, loses its significance. 30. Section 8 of the Information Technology Act, 2000 (hereinafter referred to as the IT Act ) reads thus: 8. Publication of rule, regulation, etc., in Electronic Gazette. - Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, byelaw, notification or any other matter is published in the Official Gazette or Electronic Gazette: Provided that where any rule, regulation, order, bylaw, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form. 31. In terms of the Section 8 of the IT Act, the following Office Memorandum (OM) was issued by the PSP Division in the Ministry of Urban Development on 30th September, 2015: No. O-17022/1/2015-PSP-I Government of India Ministry of Urban Development (PSP Division) Nirman Bhawan, New Delhi Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or argument has been placed before us to take a different view in the matter. We, therefore, accept the contention of the learned counsel for the petitioner on this count. 18. We find that the aforesaid issue relating to publication has also been answered in favour of petitioner and not only this, the contention with regard to the amendment has also been answered in detail by the Division Bench of the Andhra Pradesh High Court in Ruchi Soya Industries Ltd. (supra). The findings recorded in the said judgment are extracted herein under: 76. In view of the law declared by the Courts with regard to interpretation of taxing statutes, it is clear that when the amended provision or any provision of the statute creates serious inconvenience, serious absurdity, confusion or friction, contradiction and conflict between its various provisions, the same is illegal and amendment of sub-section (4) of Section 25 giving effect to the notification from the date of its issue for publication in the Gazette is an arbitrary exercise of power by the Legislature and it is totally contrary to the purport of sub-section (1) and subsection (2-A) of Section 25 of the Act, which mandates publicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of notification in electronic mode is an illegality. Therefore, the petitioners are entitled to claim refund of the amount paid in excess of 30% of the original rate of customs duty as on the date of presentation of ex-bond bills of entry for clearance of import goods for human consumption. Therefore, the respondents are liable to repay the excess amount which they collected from the petitioners beyond 30% of customs duty. 79. One of the contentions raised by the learned Counsel for the respondents, when a remedy by way of appeal under Sections 128 and 129(A) of the Customs Act is available, the petitioner is disentitled to claim relief under Article 226 of the Constitution of India. But, the said contention cannot be accepted for the simple reason that the appellate authority or Tribunal cannot declare any provision in the statute as illegal or arbitrary. Therefore, we find no force in the argument of the learned Counsel for the respondents and the same is rejected. 80. In view of our foregoing discussion, Section 25(4) of the Customs Act is declared as arbitrary and contrary to Section 25(1) and (2-A) of the Customs Act, 1962 and that the respondents are liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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