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TMI Blog2020 (9) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... of entry under Section 17(4). HELD THAT:- The purpose of the notification being to discourage the import of goods from Pakistan, it has prospective effect: the object and purpose is not to penalize Indian importers who had completed their imports, presented bills of entry for home consumption and had completed self-assessment in terms of the provisions of the Customs Act and the Regulations, prior to the issuance of the notification. Determination of the rate under Section 15 of the Customs Act 1962 - HELD THAT:- Section 15(1)(a) uses two expressions (i) the rate and valuation in force ; and (ii) on the date of the presentation of the bill of entry for home consumption under Section 46. The provisions of Section 15(1)(a) have to be read in conjunction with the provisions of Section 46 which are referred to in the former provision. Section 46 has incorporated a regime which encompasses the submission of the bill of entry for home consumption or warehousing in an electronic format, on the customs automated system in the manner which is prescribed. The Regulations of 2018 stipulate the manner in which the bill of entry has to be presented. The deeming fiction in Regulation 4(2) specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f provisions in the Customs Act in regard to the electronic filing of the bill of entry and the completion of self-assessment. Notification under Section 8A of the Customs Tariff Act - HELD THAT:- A notification which is issued in terms of the provisions of Sub-section (1) of Section 8A is akin to the exercise of a delegated legislative power. The Central government is empowered to issue a notification enhancing the rate of duty where it is satisfied that immediate action is necessary to increase the rate of customs duty on an article specified in the First schedule. The effect of the notification is to amend the First schedule to the Customs Tariff Act in respect of the import duty leviable on an article under Section 12 of the Customs Act. In issuing a notification under Sub-section (1) of Section 8A, the Central government exercises power as a delegate of the legislature. The issue now to be considered is whether the notification that was issued by the Central government under Section 8A(1) at 20:46:58 hours on 16 February 2019 took effect commencing from 0000 hours on that day. The rate of customs duty is determined on the date on which the bill of entry for home consumption is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance of the goods for home consumption under Section 47. The rate of duty which was applicable was crystallized at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 read with Regulation 4(2) of the Regulations of 2018. The power of reassessment under Section 17(4) could not have been exercised since this is not a case where there was an incorrect self-assessment of duty. The duty was correctly assessed at the time of self-assessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the notification bearing 5/2019 did not furnish a valid basis for re-assessment. Appeal dismissed. AS PER K.M. JOSEPH, J. Does a notification under Section 8A of the Customs Tariff Act, 1975 increasing the import duty published late in the evening of 16th Feb 2019, date back to the midnight of the previous day? Does a day include its fractions? - HELD THAT:- The Customs Act is a consolidating Act. It is intended, inter alia, to deal with the menace of smuggling. It contains various sanctions. It also provides for the levy of Customs duty on import and export. It is a law which provides revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, who presents a Bill of Entry under Section 46 and who carries out self-assessment, is duty-bound to pay such duty on the very same date. The consequence of failure is only the liability to pay interest under Section 47 besides disabling him from clearing the goods. It does not postpone the point of time at which the rate of duty is to be determined. As far as the Notification issued under Section 8A of the Tariff Act is concerned, the Notification would come into force on the date on which it is published in the Gazette. The question, however, which arises in this case is, as far as this Court is concerned, res integra, viz., whether having regard to the time at which it was published, whether Notification would come into force on 16.02.2019, by including the whole of the day or will it operate from the time of its publication, or whether the Notification is to be enforced only after excluding 16.02.2019 - The question would pointedly arise whether it was to have effect for the whole of the day, viz., 16.02.2019, which means, since the day 16.02.2019 was born, immediately after the midnight on 15.02.2019, does a day mean the first moment after the midnight? If that were the effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Entry for home consumption, self-assessment and payment of duty on the basis of the same and the rate being clearly fixed with reference to the particular point of time when the Bill of Entry is presented and there is a deemed presentation and even a deemed assessment, which is otherwise in order, and bearing in mind the principle that Section 8A does not provide power for increase of rate of duty with retrospective effect, the Notification must be treated as having coming into force not before its publication which is at 20:46:58 hrs. on 16.02.2019. This would necessarily mean that the Notification cannot be used to alter the rate of duty on the basis of which, in fact, there was presentation of Bill of Entry several hours ago, the self-assessment was done and what is more, the self-assessment was completed under Regulation 4(2) of the 2018 Regulations. There cannot be reassessment. The interpretation based on time of publication is in harmony with a view that accords respect for vested rights. Two inconsistent rates at the same point of time - HELD THAT:- There is no merit in the submission of the appellants in this regard. Once it is found that the notification upon publicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is published would indeed have relevance as already found. Appeal dismissed. - JUSTICE DR DHANANJAYA Y CHANDRACHUD, JUSTICE INDU MALHOTRA , JUSTICE K. M. JOSEPH For the Petitioner : Mr. B. Krishna Prasad, AOR For the Respondent : Ms. Sweta Rani, AORMr. Devashish Bharuka, AORMrs. Jaya Bharuka, Adv.Mr. Ravi Bharuka, Adv.Sarvshree, Adv.Mr. Justine George, Adv.Ms. Srishti Agarwal, Adv.Mr. P.S. Narsimha, Sr. Adv.Mr. Saurabh Kapoor, Adv.Mr. Parmatma Singh, AORMr. Mayank Jain, Adv.Mr. Madhur Jain, Adv.Mr. Rishabh Kapoor, Adv.Ms. Aditi Tripathi, Adv.Mr. K.K. Tyagi, Adv.Mr. Sarvam Ritam Khare, AOR Civil Appeal No 3250 of 2020 (Arising out of SLP (C) No.3861 of 2020) Civil Appeal No 3250 of 2020 (Arising out of SLP (C) No.3869 of 2020) Civil Appeal No 3252 of 2020 (Arising out of SLP (C) No.3867 of 2020) Civil Appeal No 3253 of 2020 (Arising out of SLP (C) No.3865 of 2020) 1 Civil Appeal No 3262 of 2020 (Arising out of SLP (C) No.5029 of 2020) Civil Appeal No 3265 of 2020 (Arising out of SLP (C) No.7059 of 2020) Civil Appeal No 3267 of 2020 (Arising out of SLP (C) No.6451 of 2020) Civil Appeal No 3269 of 2020 (Arising out of SLP (C) No.7063 of 2020) Civil Appeal No 3270 of 2020 (Arising ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epublic of Pakistan were subjected to an enhanced customs duty of 200%. The precise time at which the notification was uploaded on the e-Gazette was 20:46:58 hours. Customs authorities at the land customs station at Attari sought to enforce the enhanced rate of duty on importers who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-Gazette. Their action led to a challenge before the High Court of Punjab and Haryana. The consignments of import covered a diverse range of goods, ranging from dry dates to cement. 3 On 26 August 2019, a Division Bench of the High Court of Punjab and Haryana allowed a batch of writ petitions under Article 226 of the Constitution. The High Court held that since the importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of selfassessment before the notification enhancing the rate of duty to 200 per cent was issued and uploaded, the enhanced rate of duty was not attracted. The High Court held that the importers were liable to pay the duty applicable at the time when the bills of entry for home consumption were filed under Section 46 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification, a new tariff entry was introduced in Chapter 98 of Section XXI in the following terms: (1) (2) (3) (4) (5) 9806 00 00 All goods originating in or exported from the Islamic Republic of Pakistan - 200 % - . The notification contains a reference to the date (16 February 2019) and time (20:46:58) at which it was uploaded and published in the e-Gazette of the Government of India. Based on the enhancement in the rate of duty brought about by the notification, the customs authorities refused to release the goods which were assessed earlier. The bill of entry was recalled and reassessed on 20 February 2019 at 18:14 hours by levying customs duty at 200 per cent and IGST at 28 per cent, enhancing the duty from ₹ 73,342/- to 8,10,952/-. 7 Aggrieved by the action of the customs authorities, the first respondent filed a petition under Article 226 for setting aside (i) the assessment of the bill of entry to a duty of 200%; (ii) Notification 5/2019 dated 16 February 2019; and for a direction to CWC to issue a detention memo and the release of the goods. C Petitions before the High Court 8 The batch of petitions before the High Court involved cases of other similarly situated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods into India, bona fide relying on the policy which was applicable before the notification was issued in the late hours of the day. On the issues of law, it was urged that after the presentation of the bills of entry for home consumption, self-assessment and duty payment challans had been generated, it was not open to the customs authorities to levy the enhanced rate of duty which came into force later, from 20:46 hours on 16 February 2019. The application of notification 5/2019 would, it was urged, have retrospective effect since the bills of entry for home consumption had been filed electronically on the customs automated platform before the issuance of the notification and they were self-assessed. 10 On the other hand, the contention of the Union government before the High Court was that under Section 15 of the Customs Act, 1962 the relevant date for determining the rate of duty is the date of the presentation of the bill of entry. The submission was that the amended rate of duty under notification 5/2019 came into force on 16 February 2019; hence, the importers were liable to pay duty on the basis of the amended rate. The submission was that the customs authorities were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on imported goods cleared for home consumption is, by a legal fiction, the rate prevalent on the date of the presentation of the bill of entry; (iii) Section 15 should be interpreted in light of the rule of literal construction, and the law has to be applied as it is; and (iv) This case is not about the prospective or retrospective application of the Notification at issue. Rather, it is the simple intent of Parliament to consciously make the date on which the Notification is issued as the date for determination of the rate of duty (as applicable), which this court must uphold. B (i) Independent of (A) above, a notification under Section 8A(1) of the Customs Tariff Act has the effect of amending the First schedule and is a legislative act which dates back to the commencement of the day; (ii) The schedule is a part of the Act, and hence an amendment to it is an amendment to the Act; (iii) Sub-section (2) of Section 8A of the Customs Tariff Act applies the provisions of sub-sections (3) and (4) of Section 7 to a notification which is issued under Section 8A(1); (iv) A notification under Section 8A(1) amending the first schedule has to be placed before each House of Parliament and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption presented after 20:46:58 hours on 16 February 2019 or upon amendment in the online EDI portal of ICEGATE; (iii) A notification issued under the provisions of Section 8A (1) of the Customs Tariff Act cannot have a retrospective character; and (iv) Subordinate legislation is not retrospective unless the statute under which it has been framed, expressly or by necessary implication, imports retrospectivity. Subordinate legislation cannot always be equated as an Act of legislature for the interpretation of Central Act as defined by the General Clauses Act. C (i) Digital India is a new vision and idea into which India is evolving, and we are in a phase of governance in which multiple commercial transactions take place every single day. Rule 5(1) of the Information Technology (Electronic Service Delivery) Rules, 2011 mandates maintenance of timestamps for any governmental electronic records; (ii) In exercise of the powers conferred by Section 157 read with Sections 46 and 47 of the Customs Act, the Central Board of Indirect Taxes and Customs has passed the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018- the Regulations 2018 ; (iii) U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Section 15(1) is extracted below: 15. Date for determination of rate of duty and tariff valuation of imported goods.- (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force,- (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which a bill of entry for home consumption in respect of such goods is presented under that section]; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry inwards of the vessel or the arrival of the aircraft or the vehicle by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards or the arrival, as the case may be. The provisions of this section shall not apply to baggage and goods imported by post. (emphasis supplied) 17 Section 12 specifies that the rates of duty on goods imported and exported are those which are provided in the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of entry may be presented at any time not exceeding thirty days prior to the expected arrival of the aircraft or vehicle by which the goods have been shipped for importation into India. Dealing with such a situation, the proviso to Section 15(1) states that if a bill of entry has been presented prior to the date of the entry inwards of the vessel or the arrival of the aircraft or vehicle by which the goods are imported, the bill of entry is deemed to have been presented on the date of the entry inwards or the arrival of the goods. Hence even where the bill of entry has been presented before the date of the entry inwards or the arrival of the aircraft or vehicle, the rate of duty is determined with reference to the date of entry inwards or the arrival of the aircraft or vehicle. This is a consequence of the deeming fiction under the proviso, as a result of which the presentation of the bill of entry, when filed prior to the arrival of the goods, is deemed to be on the date of the entry inwards or the arrival of the aircraft or vehicle. Hence, implicit in the provisions of Section 15(1) are the dual or (as counsel before the court described them) the twin requirements of (i) the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to India: Provided further that where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed. (4) The importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, [and such other documents relating to the imported goods as may be prescribed]. (4A) The importer who presents a bill of entry shall ensure the following, namely:- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force . (emphasis supplied) Sub-section (1) of Section 46 requires an importer of goods to make an entry by presenting a bill of entry for home consumption or warehousing electronically on the customs automated system to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without prejudice to any other action which may be taken under this Act, re-assess the duty leviable on such goods .. (5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment done by the importer or exporter and in cases other than those where the importer or exporter, as the case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass a speaking order on the re-assessment, within fifteen days from the date of re-assessment of the bill of entry or the shipping bill, as the case may be. Explanation.-For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received. (emphasis supplied) Prior to its substitution by Amending Act 8 of 2011, Section 17 contained requirements for (i) examination and testing of goods; and (ii) assessment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedure and modalities for assessment of duty under Section 17. Under subsection 1 of Section 17, the importer entering imported goods under Section 46, has to self-assess duty (except as otherwise envisaged in the provisions of Section 85). Under sub-section (2), the proper officer may verify the entries made under Section 46 and the self-assessment made under sub-section (1) and may examine or test the goods. The selection of goods for verification has to be primarily on the basis of risk evaluation through appropriate selection criteria. Under sub-section (4), where it is found on verification, examination or testing of goods or otherwise that the self-assessment has not been done properly the proper officer is entrusted with a power of re-assessment. Sub-section (5) requires the passing of a speaking order upon re-assessment. 21 Section 47 provides for the clearance of goods for home consumption: Clearance of goods for home consumption. (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding thirty days prior to their expected arrival. In tandem with the provisions of Section 46, Section 17 provides for the self-assessment of duty by the importer. Section 46(1) stipulates that the bill of entry has to be presented in the form and in the manner prescribed . The expression prescribed is defined in Section 2(32) to mean prescribed by regulations made under the Act. The Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018 have been made in pursuance of the enabling power conferred by Sections 46 and 47 and Section 157 which contains a general power to make regulations. Section 157(2)(a) was amended by the Finance Act 2018 (Act 13 of 2018) to allow for the power to frame regulations on the form and manner of delivering or presenting inter alia a bill of entry. Regulation 2(c) of the 2018 Regulations defines the expression bill of entry in the following terms: (c) bill of entry means electronic integrated declaration accepted and a unique number generated and assigned to that particular bill of entry by the Indian Customs Electronic Data Interchange System, and includes its electronic records or print-outs Regulation 2(d) defines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay charges for late presentation of the bill of entry at the rate of (emphasis supplied) 22 The Regulations of 2018 have made provisions for submission of a declaration and generation of the bill of entry in an electronic form on the automated platform provided by the Central Board of Indirect Taxes and Customs. Sub-regulation (2) of Regulation 4 embodies a legal fiction. Regulation 4(2) stipulates that the bill of entry is deemed to have been filed and selfassessment completed when after the entry of the electronic integrated declaration on the customs automated system (or by data entry through a service centre) a bill of entry number is generated by the Indian Customs Electronic Data Interchange ( EDI ) System. The self-assessed copy of the bill of entry may be electronically transmitted to the authorized person under the deeming fiction which is created by Regulation 4(2). Hence, the bill of entry is deemed to be filed and the self-assessment completed when the requirements of Regulation 4(2) are fulfilled namely by the (i) entry of the declaration on the customs automated system; and (ii) generation of a bill of entry number by the EDI system. Following this, the self-assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15(1)(a) have to be read in conjunction with the provisions of Section 46 which are referred to in the former provision. Section 46 has incorporated a regime which encompasses the submission of the bill of entry for home consumption or warehousing in an electronic format, on the customs automated system in the manner which is prescribed. The Regulations of 2018 stipulate the manner in which the bill of entry has to be presented. The deeming fiction in Regulation 4(2) specifies when presentation of the bill of entry and selfassessment are complete. The rate of duty stands crystallized under Section 15(1)(a) once the deeming fiction under Regulation 4(2) comes into existence. The regulations have to be read together with the statutory provisions contained in Section 15(1)(a) and Section 46, while determining the rate of duty. G Precedent 25 At this stage it is necessary to analyze the precedent on the subject. In Bharat Surfactants (Private) Limited vs. Union of India (1989) 4 SCC 21 ( Bharat Surfactants ), customs duty was imposed on the import of edible oil by the petitioners at the rate of 150 per cent on the basis that the import was made on the date of the inward entry, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above observations, referring to the date of the actual removal of goods from the warehouse, were made in the context of the provisions of Section 15(1)(b). In a subsequent decision in Dhiraj Lal H Vohra vs. Union of India 1993 Supp (3) SCC 453, Justice K Ramaswamy speaking for a three judge Bench observed: 3. It is clear from a bare reading of these relevant provisions that the due date to calculate the rate of duty applicable to any imported goods shall be the rate and valuation in force, in the case of the goods entered for home consumption under Section 46, is the date on which the bill of entry in respect of such goods is presented under that section and in the case of goods cleared from a warehouse under Section 68, the date on which the goods are actually removed from the warehouse. By operation of the proviso if a bill of entry has been presented before the date of entry inwards the bill of entry shall be deemed to have been presented on the date of such entry inwards but would be subject to the operation of Sections 46 and 31(1) of the Act. In that case the ship had arrived at the Port of Madras on 20 February 1989 and was ready to discharge her cargo. Though the import m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is also no presumption that rate of duty always goes up. It may also go down, in which case, the importer stands to gain. 26 The presentation of a bill of entry for home consumption under Section 46 is hence the definitive event with reference to which the customs duty payable for import is determined. The duty in force on the day when the bill of entry for home consumption is presented is the duty which is applicable under Section 15(1)(a). It is in view of this principle that the entry of the vessel into territorial waters, before the presentation of the bill of entry, has been held not to fix the rate of duty where the rate of duty has undergone a change. H Interpreting day and date 27 The expressions day and date have been construed in varying contexts in the precedents of this Court. The underlying feature of the decisions is that the content of those expressions is based on the context. In Raj Kumar Yadav vs. Samir Kumar Mahaseth (2005) 3 SCC 601, the limitation provided by Section 81 of the Representation of the People Act 1951 expired on the 45th day from the date of the election. Interpreting the provision, Chief Justice R.C. Lahoti while speaking for a three judge B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act (which prescribes the period of limitation for a suit for specific performance) is suggestive of a specific date in the calendar. The court observed: 11. The inevitable conclusion is that the expression date fixed for the performance is a crystallised notion. This is clear from the fact that the second part time from which period begins to run refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on when the plaintiff has notice that performance is refused . Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. 31 The expression date in Article 54 was held to be suggestive of a specified date in the calendar. In Pashupati Nath Singh vs. Harihar Prasad Singh (1968) 2 SCR 812, a three judge Bench construed the words on the date fixed for scrutiny in Section 36(2)(a) of the Representation of the People Act 1951. Interpreting those words, the Court held that the qualificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of each case to arrive at the true construction. Having said this, the Chief Justice outlined the principles in the following extract on page 688: (1) that, if the named date is the beginning of a defined limited period, that, where there is a terminus ad quem as well as a terminus a quo, then prima facie the first day is excluded; (2) that, if the named date is the beginning of an indefinite period then prima facie the first day is included. I say prima facie because in my view there must be exceptions . In his view, the expression from a named date meant on and after that day . Hence the date on which the notification was published in the official Gazette was held to apply to all plaints which were filed on 5 May 1922. Justice Coutts Trotter, arrived at the same conclusion as the Chief Justice, following a different path, which he set out in the following observations, on page 691 : What I conceive to emerge from the decided cases is this: that as the law in general neglects fractions of a day you must either exclude or include the whole of the day with which a given statute or rule or regulation deals. And the exclusion or inclusion, I think, is clearly provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hindu and Mohammedan Laws. Voicing a powerful dissent, Justice Kumaraswami Sastri observed, on page 704: I do not think that the principles which govern, or the devices which are resorted to, by the Executive for the purpose of raising money by taxation ought to have any weight with us in determining whether the date of publication is to be included or excluded. I do not think the High Court is part of the tax gathering machinery of the Government or has any concern with the consequences to the Government of their decision on the construction of the rule. The rule, I take it, was passed by the Judges of the High Court in the exercise of the powers entrusted to them to control the administration of justice and the fees were raised because in the opinion of the Judges it was just and proper that litigants ought to pay more for the benefits which they derive by resorting to the jurisdiction of the High Court . In the view of the learned Judge, the notification having been received in the Registry of the High Court at 5pm at the office closing hour, litigants who had filed plaints before either or they or the office had knowledge of the publication did what was perfectly valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down that is divorced from subject, context and statute. In interpreting the statute, the court is guided by the terms of its provisions, the purpose underlying their adoption and the scheme which emerges from interrelated provisions and the nature of the provision. The court in the present case is interpreting the terms of a fiscal levy. The court here has to construe the scheme and provisions of the Customs Act and their relationship with the provisions of the Customs Tariff Act. The provision which falls for construction is Section 15(1) of which both clauses (a) and (b) use the expression on the date . In clause (a), the rate of duty and valuation is the rate and valuation in force on the date on which a bill of entry is presented under Section 46 where goods are entered for home consumption. Under Clause (b), where goods are cleared from a warehouse under Section 68 it is the date on which a bill of entry for home consumption is presented under that Section which is determinative of the rate and valuation. 35 Mr Natraj is textually right when he emphasizes that Section 15 (1) contains a reference to date and not time. But there are two responses to his line of approaching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prefatory part of Section 15(1). A notification under Section 8A(1) of the Customs Tariff Act, even though it has the effect of amending the First Schedule, takes effect prospectively. Section 8A does not confer upon the notification an operation anterior to its making. In the language of the law, its operation is prospective. To accept the submission of the ASG would mean that the notification under Section 8A would have effect prior to its making, something which Parliament has not incorporated by language or intent. If, as we hold, the notification operates for the future beginning with the point of its adoption, it cannot operate to displace the rate of duty which is applicable when a bill of entry is presented for home consumption under Section 46. The submission of the Union cannot be accepted in view of the provisions contained in Section 46 for the presentation of a bill of entry for home consumption in an electronic form on the customs automated system. While making that provision, specifically by means of an amendment by Act 8 of 2011 and later by the Finance Act of 2018, Parliament used the expression in such form and manner as may be prescribed. Regulation 4(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision is to be read as if it is a part of the enactment. Hence, for instance, an exemption granted under a notification made in pursuance of a statutory provision must be construed as if it is contained in the legislation. 38 In order to consider the submission, it is necessary at the outset to advert to the provisions of the Customs Tariff Act. Under Section 8A, an emergency power is vested in the Central Government to increase the import duties leviable on an article included in the First schedule where it is satisfied that circumstances rendering it necessary to take immediate action exist. Section 8A is in the following terms: 8A- Emergency Power of Central Government to increase import duties- Where in respect of any article included in the First Schedule, the Central Government is satisfied that the import duty leviable thereon under section 12 of the Customs Act, 1962 (52 of 1962) should be increased and that circumstances exist which render it necessary to take immediate action, it may, by notification in the Official Gazette, direct an amendment of that Schedule to be made so as to provide for an increase in the import duty leviable on such article to such extent as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3), may be rescinded by the Central Government at any time by notification in the Official Gazette. (emphasis supplied) Under sub-section (3) of Section 7, the Central government is required to seek the approval of Parliament to a notification within a period of fifteen days of its being laid before the House of the People. Where Parliament is in session, the notification has to be laid before the House as soon as may be after it is issued and, if it is not, then within seven days of the legislature re-assembling. The approval of parliament has to be sought within the specified period. The notification would cease to have effect or take effect with modifications, if Parliament so directs. In the case of a notification which has been issued under Section 11A, sub-section (2) does not require the Central government to seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days from the date on which the notification has been laid before the House of the People. Sub-section (2) of Section 11A merely states that the notification shall either cease to have effect or have effect in a modified form if it is so directed by both the Houses of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of India Act, 1935; The expression commencement is defined in Section 3(13) as follows: (13) Commencement used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force. The definition of the expression commencement is also relatable to a Central Act or Regulation . 41 A notification issued by the Central government under sub-section (1) of Section 8A does not fulfill the description of a Regulation under Section 3(50) of the General Clauses Act. The expression is confined to specific species of Regulations. The definition does not extend to all subordinate legislation or to notifications issued by a delegate of the legislature acting in pursuance of a statutory authority. 42 The expression Central Act is defined by using the expressions shall mean and shall include . The use of these expressions indicates that the definition is exhaustive. Insofar as is relevant, the expression Central Act is defined to mean an Act of Parliament. A notification which has been issued under Sub-section (1) of Section 8A of the Customs Tariff Act is not an Act of Parliament. The notification has the effect of amending the First schedule. The Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under an enactment; it remains a 'rule' and takes its colour from the definition of the term in the Act (General Clauses Act). 45 In Securities and Exchange Board of India vs. Magnum Equity Services Ltd (2015) 16 SCC 721, a two judge Bench of this Court considered whether the General Clauses Act is applicable to the interpretation of the SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992. The Court observed that the Regulations were framed by SEBI in exercise of the powers conferred on it by Section 30 of the SEBI Act, 1992. Section 31 requires the rules and regulations to be laid before Parliament. Justice Vikramajit Sen concluded as follows: 12. The main contention raised by the learned Senior Counsel for the appellant is based on the application of the General Clauses Act, 1897 which under Section 13(2) states that plural includes singular. However, before we consider Section 13, we shall have to determine whether the General Clauses Act itself is applicable to the SEBI (Stockbrokers and Sub-Brokers) Regulations, 1992. Section 3 of the General Clauses Act, 1897 states that the said Act is applicable to all Central Acts and Regulations made after the commencement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory authority into a Central Act . K Information Technology Act, 2000 47 While enacting the Information Technology Act 2000, Parliament envisioned a regime of electronic governance. The legislation recognizes that information technology is a facilitative instrument for creating an efficient framework for e-commerce. Providing the backdrop for Parliamentary intervention, the Statement of Objects and Reasons underlying the enactment of the legislation provides the rationale for the law: New communication systems and digital technology have made dramatic changes in the way we live. A revolution is occurring in the way people transact business. Businesses and consumers are increasingly using computers to create, transmit and store information in the electronic form instead of traditional paper documents. Information stored in electronic form has many advantages. It is cheaper, easier to store, retrieve and speedier to communicate. Although people are aware of these advantages, they are reluctant to conduct business or conclude any transaction in the electronic form due to lack of appropriate legal framework. The two principal hurdles which stand in the way of facilitating electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computer generated micro fiche Chapter III is devoted specifically to electronic governance. Among its salient provisions are those providing for: (i) Legal recognition of electronic records (Section 4); (ii) Legal recognition of electronic signatures (Section 5); (iii) Use of electronic records and electronic signatures in government and its agencies (Section 6); (iv) Authorization by government to service providers to set-up, maintain and upgrade computerized facilities (Section 6A); and (v) Retention of electronic records (Section 7). Sub-section 1 of Section 6 has a bearing on the issues raised in this case: 6. Use of electronic records and electronic signatures in Government and its agencies- (1) Where any law provides for - (a) the filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner; (b) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; (c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repository of electronically signed electronic records and any addition or deletion of a record from such repository shall be electronically signed by the person who is authorized to make such changes along with the time stamps of original creation and modification times Digital signatures have contextual information including the date and time built into them. Under the Digital Signature (End entity) Rules 2015, provisions for time stamps for digital signatures are built into the legal regime under Rule 4(4) and, in the context of a long term valid digital signature, in Rule 4(7). Section 13 of the Information Technology Act 2000 contains provisions for the time and place of the dispatch and receipt of electronic records. It reads as follows: 13. Time and place of dispatch and receipt of electronic record.- (1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator. (2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:- (a) if the addressee has design ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Electronic Service Delivery) Rules 2011. L Effect of notifications issued in e-gazettes 51 Section 8 of the Information Technology Act, 2000 creates a legal basis for the publication of laws through e-gazettes. It reads as follows: Section 8 - Publication of rule, regulation, etc., in Electronic Gazette- Where any law provides that any rule, regulation, order, byelaw, 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, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette: Provided that where any rule, regulation, order, by-law, 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. 52 On 30 September 2015, the Ministry of Urban Development issued an Office Memorandum numbered No. O-17022/1/2015-PSP-l which discontinued the practice of physical printing and replaced it with the electronic gazette. The notification, in relevant part, reads as follows: In compliance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... juxtaposition with Section 8 of the IT Act, and of the OM dated 30th September, 2015 supra, of the Ministry of Urban Development, makes it clear that the impugned Notification Nos. 24 and 25, dated 25th August, 2017 were, in fact, electronically published in the Official Gazette 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 Rajasthan [1952 (1) SCR 110], B.K. Srinivasan v. State of Karnataka [AIR 1987 SC 1059] and U.O.I, v. Param Industries [(2016) 16 SCC 692] that, notifications would come into force on their publication in the Official Gazette, i.e. in the present case, with effect from the date and time when they were electronically printed in the Gazette, which was at or after 10:47 p.m. on 28th August, 2017. (emphasis supplied) 56 Thus, the High Court regarded the time of publication as the relevant marker for determining the enforceability of the notifications. The issue of determining the starting point for the enforceability of a notification in the electronic gazette was considered by the Andhra Pradesh High Court in Ruchi Soya Industries vs. Union of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019. 59 The impugned High Court judgement has relied on the decision of the Karnataka High Court in Param Industries Ltd. vs. Union of India 2002 (150) E.L.T. 3 (Kar), which was confirmed by the decision of this Court in Union of India vs. Param Industries Limited (2016) 16 SCC 692 [ Param Industries ] In that case, the respondents were in the business of importing and exporting edible oil. The respondents imported RBD Palmolein which was cleared after payment of import duty of 85 per cent of its value. The import duty was paid pursuant to a notification which was in existence as on that date. A major quantity of the goods had been removed from the warehouse after the payment of duty. The importer was, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of the publication in the Official Gazette, this Court held [Srinivasan case[(1987) 1 SCC 658, 672 : AIR 1987 SC 1059, 1067] AIR at p. 1067 : SCC pp. 672-73, para 15]: Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognized official channel, namely, the Official Gazette or some other reasonable mode of publication. 18. We, therefore, see no substance in the contention that notwithstanding the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability. (emphasis supplied) The principles recognized in Pankaj Jain were re-iterated and affirmed by a three judge Bench of this Court in Union of India vs. Ganesh Das Bhojraj (2000) 9 SCC 461 which dealt with the enforceability of a notification under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no reason to depart from the same by laying down additional requirement. (emphasis supplied) 61 Param Industries, in as much as it imposed an additional requirement of offering for sale , outside of the prescribed statutory scheme under S.14(2) of the Customs Act, 1962, appears to be contrary to pre-existing principles. Having said this, we do not wish to rule on the validity of Param Industries or its consequent impact on decisions that have relied on it. In the present judgment it is not necessary to take recourse to the line of reasoning in Param Industries. The situation at hand, operates on a landscape which is significantly altered by the regulatory regime in the electronic age where, both uploading of notifications in the e-gazette and filing of bills of entry- are in the electronic form. As we have previously noted, Notification 5/2019 was uploaded in the e-gazette at a specific time and date and cannot apply to bills of entry which were presented on the customs automated EDI system prior to it, attracting the legal fiction set out in Regulation 4(2) of the 2018 Regulations. Therefore, Param Industries does not have any bearing on the case at hand. M Retrospectivity 62 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enhancing the rate of duty under Section 8A is not accompanied by a statutory entrustment of authority to the Central government to exercise it with retrospective effect. An enhancement of the rate of duty pursuant to the exercise of power under Section 8A can only be prospective. 64 Parliament and the state legislatures are entrusted with the power to enact legislation under Articles 245 and 246 of the Constitution. Parliament and the state legislatures possess the plenary power to enact legislation, with prospective and retrospective effect, subject to due observance of constitutional requirements. A notification issued by the government pursuant to the conferment of statutory power is distinct from an act of the legislature. Administrative notifications, even when they are issued in pursuance of an enabling statutory framework, are subject to the statute. Delegated legislation does not lose its character even when it has the same force and effect as if it is contained in the statute. This is a settled position of law. In a decision which was rendered in 1961 by a Constitution Bench of this Court in Chief Inspector of Mines vs. Lala Karam Chand Thapar AIR 1961 SC 838, the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, were pivotal in the court s view that a scheme under the 1980 Act has a legislative character. Mr Natraj sought to emphasize a similar argument, by placing reliance on the provisions of sub-sections (3) and (4) of Section 7 which are made applicable by reason of sub-section (2) of section 8A. However, in the absence of a sine qua non for parliamentary sanction before the notification is enforceable, the decision of New Bank of India provides little anchor. For the purpose of the present decision the point which needs emphasis is that in empowering the Central Government to exercise power under Section 8A of the Customs Tariff Act, Parliament has not either expressly or by necessary implication indicated that a notification once issued will have force and effect anterior in time. The provisions of sub-sections (3) and (4) of Section 7 of the Customs Tariff Act bring to bear legislative oversight and supervision over the power which is entrusted to the Central Government under Section 8A. That however does not lead to the inference that a notification under Section 8A has retrospective effect. Plainly, a notification enhancing the rate of duty under Section 8A has prospective effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spelled out from the express words of the delegation or by compelling implication. In the present case the power under Section 4(1) does not indicate either alternative ... The Court held that the fact that the rules had been framed in pursuance of a resolution passed by the legislature or that they have to be placed on the table of the legislative body would not lead to an inference that the legislature had authorized the framing of subordinate legislation with retrospective effect: 4 The mere fact that the rules framed had to be placed on the table of the legislature was not enough, in the absence of a wider power in the section, to enable the State Government to make retrospective rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of any one of the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand v. Union of India [(1972) 2 SCC 601, 606 : (1973) 1 SCR 896, 902]. This precisely is the principle which applies in construing whether the power which is conferred by Section 8A of the Customs Tariff Act is retrospective. The provisions of sub-sections (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, the declaration of liability which determines what persons in respect of what property are liable . The second is the stage of assessment. Liability, it is well settled, does not depend on assessment since exhypothesi, that has already been fixed. Assessment particularizes the exact sum which a person is liable to pay. Third (and the last) are the methods of recovery if a person who is taxed does not voluntarily pay. (See in this context the decisions of the Federal Court in Chatturam v. CIT, Bihar (1947) FCR 116 at 126 and of this Court in A V Fernandez vs. State of Kerala 1957 SCR 837 at para 39 and Deputy CTO vs. Sha Sukraj Peerajee (1967) 3 SCR 661 at para 5. 67 In the present case the twin conditions of Section 15 stood determined prior to the issuance of Notification 5/2019 on 16 February 2019 at 20:46:58 hours. The rate of duty was determined by the presentation of the bills of entry for home consumption in the electronic form under Section 46. Self-assessment was on the basis of rate of duty which was in force on the date and at the time of presentation of the bills of entry for home consumption. This could not have been altered in the purported exercise of the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, filed Bills of Entry under the Customs Act, 1962 in respect of goods imported from Pakistan. In fact, there was an agreement between India and Pakistan, both being SAARC Countries, under which, duty was to be levied on the imports from Pakistan at concessional rates, in those cases where imports were exigible to any duty at all. The goods which were subject matter of import, had also arrived in the Customs Station and as noticed, during the course of the working hours on 16.02.2019 and well before the time of the Notification hereinbefore adverted to, the Bills of Entry came to be presented. The duty came to be selfassessed by the respondents. It is, thereafter, that taking inspiration from the hefty increase in duty effected under the Notification the Writ Petitioners came to be faced with reassessment proceedings. It is accordingly that they approached the High Court and filed Writ Petitions wherein the prayer may be noticed in Writ Petition No. 18460 of 2019 as follows: a) Writ in the nature of certiorari/mandamus or any other appropriate writ for quashing of the assessment order passed in the bill of entry no. 2083178 dated 16.02.2019 (Annexure-P5) being illegal arbitrary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the Bills of Entry which came to be filed/presented on that day. To buttress his submissions, he also sought to draw support from Section 5(3) of the General Clauses Act, 1897. He would point out that the Notification would, therefore, have effect from the expiry of the previous day. That is, it is his contention that though it is issued late in the evening on 16.02.2019, since the previous day, viz., 15.02.2019 expired at midnight, the Notification must be treated as born and alive from the first tick of time past the midnight of 15.02.2019. He also drew our attention to the Scheme of the Customs Act, 1962 otherwise. With the assistance of Sections 12, 15, 46 and 47, he sought to contend that the High Court fell into error in not recognizing that the preferring of the Bills of the Entry by the respondents, could not detract from the applicability of the increased rate of duty under the Notification. 9. The principal argument of the Union of India is that these cases must be decided based on the provision of Section 15 of the Customs Act. Expatiating the argument of the Union of India Shri K.M. Nataraj, learned counsel for the Union of Indiaappellant would contend that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the authorities in purporting to apply the correct rate of duty within the meaning of Section 15 of the Act. 10. Per contra, Shri P.S. Narsimha, learned Senior Counsel for the respondent-Writ Petitioners, countered the appellants submissions by pointing out as follows: Under Section 12 of the Customs Act, imports attract customs duty as is fixed under the Tariff Act. Section 15 of the Customs Act, however, determines the date with reference to which the rate of duty as provided in the Tariff Act is to apply. Still further and crucially, this exercise is to be accomplished with reference to the date of presentation of the Bills of Entry as provided in Section 46 of the Customs Act. He would, in fact, submit that under the Customs Act, a perusal of Sections 15 and 16, would show that there are four different situations contemplated. Under Section 15, which deals with rate of duty payable on imports, in a case where the Bills of Entry is presented for home consumption under Section 46, the rate of duty is to apply with reference to be date of presentation of the Bills of Entry. In the case where the goods are cleared for being warehoused under Section 68, again the duty is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that Customs Act contemplates self-assessment. He drew our attention to Section 17 in this regard. It is the further case of the writ petitioners that based on the self-assessment, the system generated details which approved of the self-assessment. After the matter stood concluded in terms of the Act, the transaction could not be revisited on the strength of the Notification issued under Section 8A, runs the argument. It is pointed out that the Notification, issued under Section 8A, may be akin to delegated legislation. Even proceeding on the basis that it is delegated legislation, it can have only prospective operation. Section 8A of the Tariff Act, under which the Notification was issued, did not empower the author of the Notification to issue the Notification with retrospective effect. In answer to a query by the Court as to what would have been the effect of the notification which was issued at 10.00a.m. at 16.02.2019, instead of 20:46:58 hrs., at which time, it was in fact issued and if the Bill of Entry is presented after 10.00 a.m., Mr. P.S. Narsimha pointed out that it would be the Notification which was issued on 10.00 a.m., which would be the Notification in force, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation? 2. If it is subordinate legislation, when did it commence? What is the scheme of the Customs Act as regards the rate of duty on imports and the power of assessment? Was the Notification in force on 16.02.2019 so that it would cover all the transactions countenanced by the Bills of Entry which were duly presented during the office hours on 16.02.2019? What constitutes a day under Section 15 of the Customs Act? 3. Whether the Notification is covered by Section 5(3) of the General Clauses Act? 4. Whether the appellants were justified in resorting to re-assessment in these cases? THE TARIFF ACT AND WHETHER THE NOTIFICATION IS A FORM OF DELEGATED LEGISLATION 14. It is apposite that the working of the Tariff Act is unravelled. The rates of duty under the Customs Act are to be provided as per the entries in the First and Second Schedule. Section 2 of the Tariff Act, reads as follows: 2. Duties specified in the Schedules to be levied. - The rates at which duties of customs shall be levied under the Customs Act, 1962 (52 of 1962), are specified in the First and Second Schedules. 15. In other words, the rate of duty must be one which is provided by Parliament. It may require an amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t circumstances where the delegate of the Legislature, viz. the Central Government, considers it necessary to take immediate action that is the process of amending the Act or rather the Schedule to the Act by the Parliament, would take time, the same is sought to be obviated by taking action under Section 8A. Undoubtedly, the provisions of Sections 7(3) and 7(4) will apply in making of the Notification. 16. On a perusal of the provisions, as noted, it is clear that a Notification issued under Section 8A, increasing the import duty, is a species of delegated legislation. It must be remembered that Article 265 of the Constitution of India declares that no tax shall be levied except by the authority of Law. An increase in the rate of duty cannot obviously be affected by an Executive Order. That is not to say that when the Executive is empowered to increase the rate of duty by way of delegated legislation, it would not fulfill the requirement of Article 265 and there can be no hesitation in holding that it is law within the meaning of Article 13 of the Constitution of India and it is a species of delegated legislation. [See in this regard AIR 1961 SC 21 para 11] THE SCHEME OF THE CUSTO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other obstacles in clearing the goods. Cases of goods imported for the purpose of being taken out of the country by way of transshipment or goods intended for transit, are not covered by Section 46 (1). The Bill of Entry under sub-Section (1) is to be presented before the expiry of the day following the day (excluding holidays) on which the aircraft, vessel or vehicle carrying the goods arrives at a Customs Station, at which the goods are to be cleared, either for home consumption or warehousing [See Section 46(3)]. The Second Proviso to Section 46(3) provides that if the Bill of Entry is not presented within the time specified and there are no sufficient reasons for such delay, the importer is to pay charges for late presentation. The importer is also to make a declaration regarding the truth of the contents of the Bill of Entry, and in support of the same, he is to produce the invoice and other documents, as may be prescribed. [See Section 46 (4)] 20. The next procedure contemplated under the Customs Act in regard to an importer entering any imported goods under Section 46 for home consumption is for the importer to carry out self-assessment except in a situation covered by Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rries out self-assessment? This question is answered in Section 47(2)(a) which provides that the importer is to pay the import duty on the very day of presentation of the Bill of Entry when the importer carries out self-assessment as is contemplated under Section 17(1) of the Act. 23. Section 47(1) contemplates that where the Officer is satisfied about the goods entered for home consumption, being not prohibited goods, and the importer has paid the import duty, if any, assessed thereon, and other charges, under the Act, he is to pass an Order permitting clearing of goods for home consumption. It is again to be noted that under Section 47(2)(b), the importer is to pay the duty within one day from the date on which the Bill of Entry is returned to him when there is assessment, re-assessment or provisional assessment. Section 47(1)(c) also contemplates permitting the importer to make deferred payment which is permitted under the Second Proviso to Section 47(1). 24. What is the effect of non-payment of the duty within the time specified in Section 47(2)? The answer to this also is contained in Section 47(2) itself as the law mandates that the importer shall pay interest on the duty not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of Entry to be presented in any other manner, where it is not feasible to make the entry electronically. 27. The Regulations holding the field providing for the form and manner in which the Bill of Entry is to be presented for home consumption under Section 46(1) of the Customs Act are called the Bill of Entry (Electronic Integrated Declaration and paperless Processing) Regulations, 2018 (hereinafter referred to as the 2018 Regulations , for short). Regulation 4(2), which is the relevant Regulation, reads as follows: 4(2) The bill of entry shall be deemed to have been filed and self-assessment completed when after entry of the electronic integrated declaration on the customs automated system or by way of data entry through the service centre, a bill of entry number is generated by the Indian Customs Electronic Data Interchange System for the said declaration and the selfassessed copy of the Bill of Entry may be electronically transmitted to the authorised person or printed out at the service centre. 28. A perusal of the aforesaid Regulation makes it clear that there is not only a deemed presentation of the Bill of Entry which the law calls into existence, as provided therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a species of delegated legislation. As far as law made by Parliament or the State Legislatures, which are sovereign bodies in their own right, subject, no doubt, to their position, under the Constitution, as expounded by this Court, the law comes into force immediately after the assent is given by the President or the Governor, respectively. A law made by Parliament has effect without any further act on the part of the Executive. This is, no doubt, subject to the intention expressed otherwise in the law so made as to any other date from which it is to have operation. It may also be a case of a conditional legislation where the law is to be brought into force by the Executive. 31. No doubt, there is a distinction between conditional legislation and delegated legislation (See in this regard, judgment of this court in I.T.C. Bhadrachalam Paperboards and another v. Mandal Revenue Officer and others (1996) 6 SCC 634, where the earlier case law has been exhaustively dealt with). 32. A Notification, which is made by the Executive, must indeed be made known. Ordinarily this is made known by being published in the Gazette. In this regard, it is profitable to refer to what this Court laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or circulation and putting it on sale to the public will not amount to the notification within the meaning of r. 8(1) of the Rules. It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public ...... Neither the date of the notification nor the date of printing, nor the date of Gazette counts for notification within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing of the official Gazette and stacking them without releasing to the public would not amount to notification at all ...... 35. Thereafter, this Court went on to hold as follows: 11. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principle which has been laid down in Ganesh Das Bhojraj(supra), which will apply. 38. In other words, as far as the Notification issued under Section 8A of the Tariff Act is concerned, the Notification would come into force on the date on which it is published in the Gazette. The question, however, which arises in this case is, as far as this Court is concerned, res integra, viz., whether having regard to the time at which it was published, whether Notification would come into force on 16.02.2019, by including the whole of the day or will it operate from the time of its publication, or whether the Notification is to be enforced only after excluding 16.02.2019. 39. The question would pointedly arise whether it was to have effect for the whole of the day, viz., 16.02.2019, which means, since the day 16.02.2019 was born, immediately after the midnight on 15.02.2019, does a day mean the first moment after the midnight? If that were the effect, what would be its impact on the Bills of Entry which were electronically presented under Section 46(1) of the Customs Act read with Rule 4(2) of the 2018 Regulations, which have already been referred to above. It is here that it becomes nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct (See in this regard Section 25 of the Customs Act and Section 2 of the Tariff Act). A DAY; A PERIOD OF TIME; FRACTION OF TIME 44. It now becomes necessary to refer to principles enunciated by Courts in diverse situations under different branches of law. 45. I would begin by referring to an off-quoted Judgment rendered by the Master of the Rolls, Sir William Grant in the decision reported in Lester v. Garland [1808] 15 Ves. 248. In the said case, there was a bequest of residual interest in favour of A if she gave security not to marry B , inter alia, within six calendar months, after the death of the Testator. There was a proviso to go over if A refused to give such security. The Testator died on the 12th of January. Security was given by A on the 12th of July. The Testator died on 12th of January between 8 and 9 in the evening. Security was given by A about 9 in the evening on 12th of July. The question, which was considered was whether the date of the death of the Testator was to be included within the six months, within which, A had to give the security, or to be excluded. If the day of the death of the Testator was included, the security given by A would be beyond the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months, given to Mrs . Pointe r to deliberate upon the choice she would make; and upon the whole my opinion is, that she has entered into the security before the expiration of the six months; in sufficient time therefore to fulfil the condition, on which her children were to take. (Emphasis supplied) 46. In Re. Railways Sleepers Supply Co. (1885) 29 Ch.d. 204, an Extraordinary General Meeting of the company passed a Special Resolution on 25.02.1885, for the reduction of the capital of the company. On 11.03.1885, the Resolution passed on the 25.02.1885, was confirmed. On a petition filed, seeking sanction of the Court for the proposed reduction of capital, the question arose whether there was compliance with Section 51 of the Companies Act, 1862. The said provision, inter alia, required confirmation of the Resolution at a subsequent General Body Meeting which was held at an interval of not less that fourteen days and not more than one month from the date of the meeting at which the Resolution was first passed. 47. Chitty J., in his opinion, referred to Lester v. Garland (supra) and held, inter alia, as follows: Lord Mansfield in his well-known judgment in Pugh v. Duke of Leeds says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholesome view that no general rule exists. . The statute which we have to construe for the purpose of deciding how the period of time mentioned in it is to be computed is a Bankruptcy Act, and enacts a new act of bankruptcy, the commission of which is to be determined by a computation of time. . If we construe s. 1 of the Act of 1890 according to the ordinary English meaning of the words, it enacts that certain consequences are to happen if the sheriff holds for twenty-one days goods seized by him under an execution: an act of bankruptcy is committed if he holds them for that time. The ordinary meaning of the words is that he must hold them for twenty-one days; but we are told that under a technical rule of construction the section is satisfied if he holds them for twenty days and a part of a day. Which is right? ... Here the result may be to make a man a bankrupt, which is not a benefit to him, nor necessarily to the whole of his creditors. The bankruptcy law is a law of public social policy, and affects in a very detrimental manner the status of those who are brought under its operation; in old times, indeed, to make a man a bankrupt was to make him a criminal; Bankruptcy is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the calculation is in favour of a person, the construction should be adopted which is more favourable to him. In the case of a sheriff, for instance, it is more in his favour to include the day on which the act is done than to exclude it, and on that ground it is included; but where, to take another example, something has to be done which is necessary to complete a title, the first day is excluded, otherwise there would be a cutting down of the time allowed for doing the act. In my opinion, although Sir W. Grant did not put the proposition in so many words, his judgment leads us to the conclusion that the question of whether the day on which the act is done is to be included or excluded must depend on whether it is to the benefit or disadvantage of the person primarily interested. But whether or no the proposition is to be put so high, we have here a statute which does not say twentyone days from taking possession; and it is only to cases where a terminus is mentioned that any such general rule was ever held to apply. The present is an a fortiori case; no terminus is mentioned, and the only question is whether the sheriff held for twenty-one days. (Emphasis supplied) 51. On 05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be, and I can find none. It is true that it may have the effect of making persons pay more than they understood they had to pay when they filed their suits; but this seems to me a ground for criticising the method of imposing this tax rather than a ground for interpreting the notice in any particular way; and I think that this argument is more than counterbalanced by the fact that this was a sudden imposition of a tax which in many cases could be avoided if notice was given of it in time for suits to be filed between the time of the publication and of its actually coming into operation. (Emphasis supplied) 52. In the Judgment of V.M. Coutts Trotter J., the learned Judge observes as follows: 6. What I conceive to emerge from the decided cases is this: that as the law in general neglects fractions of a day you must either exclude or include the whole of the day with which a given statute or rule or regulation deals. And the exclusion or inclusion, I think, is clearly provided in two other rules. If you are fixing the point of time at which a certain state of things is to be called into existence, that state of things comes into existence at midnight of the day preceding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of raising money by taxation ought to have any weight with us in determining whether the date of publication is to be included or excluded. I do not think the High Court is part of the tax gathering machinery of the Government or has any concern with the consequences to the Government of their decision on the construction of the rule. The rule, I take it, was passed by the Judges of the High Court in the exercise of the powers entrusted to them to control the administration of justice and the fees were raised because in the opinion of the Judges it was just and proper that litigants ought to pay more for the benefits which they derive by resorting to the jurisdiction of the High Court. The notification expressly states that it is to have effect from the date of publication, the object of the publication being that the public ought to have notice that the fees were being raised so that they might know exactly what they were in for when they resorted to the High Court for justice. The notification, as I have already said, was (as appears from a note of the Deputy Registrar) received in the High Court at 5 p.m., the office closing at 5 p.m. It seems to me that the litig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved on the 6th day of the day of Order of detention being served. Section 3(3), inter alia, provides for communication to a person of the grounds of detention as soon as may be after detention but ordinarily not later than five days and in an exceptional case and for reasons to be recorded in writing not later than 15 days from the date of detention. The Division Bench, which included Chief Justice M. Jagannadha Rao (as His Lordship then was), took note of judgment of the Madras High Court reported in In Re: Court Fees AIR 1924 Madras 257 under the Court Fee Act and took the view that the word from is similar to the word after , and therefore, the date on which the detention order was served, has to be excluded. In this regard, the Court took the view that the legislature has given clear 5 days to the Government to complete many other formalities before serving the grounds of detention. This is besides being guided by the use of words as soon as may be . THE CASES UNDER CONTRACTS OF INSURANCE 55. In the decision reported in New India Assurance Company Limited vs. Ram Dayal and Others (1990) 2 SCC 680, the vehicle was insured earlier upto 31st August, 1984. Instead of obtaining rene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier, the insurance coverage would not enable the claimant to seek recovery from the Insurance Company. 4. The question again arose in Oriental Insurance Co. Ltd. v. Sunita Rathi; (1998) 1 SCC 365, was relied upon. This court distinguished Ram Dayal case; (1990) 2 SCC 680, was relied upon. This Court distinguished effective date and time of the policy was after the accident, the Insurance Company would not be liable. 57. After having made a reference to some of the decisions covering different branches of law, the question to be resolved comes into focus. It is clear that the situation which is presented before us, is not covered by the principle which is embedded in Section 9 of General Clauses Act, 1897. In other words, having regard to the terms of the Notification, which is a form of delegated legislation, by which the Central Government has increased the rate of import duties of goods imported from Pakistan, though the notification is gazetted on 16.02.2018 at 20:46:58 hrs., there is no period for which it is to last as already noticed, and in that sense, it can be argued that there would be no occasion for exclusion of the date on which it was issued. WHETHER SECTION 5(3) OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of day, viz., 16.02.2019, having its beginning at 20:46:58 hrs. and ending with the midnight on 16.02.2019. 2.The second way to look at it is, it would operate only after the midnight of 16.02.2019, and would impact Bills of Entries presented on 17.02.2019 onwards. In other words, it would be an interpretation which would exclude 16th February, 2019. 3.The third day to look at it would be as follows 16.02.2019, would mean the day commencing immediately after the midnight on 15.02.2019, and therefore, it would be the whole of the 24 hours commencing at midnight of 15.02.2019 and would include the period of time during the day during which the respondents had presented the bill of entry . 63. The question is certainly not free from difficulty. The solution must, however, be found. On one hand, we are dealing with a Notification by which the appellant has purported to increase the rate of duty to a hefty quantum of 200 per cent, following the incident which took place at Pulwama. Would it be a fair and reasonable to include the whole, the day 16.02.2019, having regard to the effect on the importer of the goods who would have struck the bargain on the basis of rate of duty being wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective effect. 67. We may at once notice the counter argument. By ensuring full play for the notification for the whole of the day on which it was issued, the provisions of Section 15 of the Customs Act in the view of Additional Solicitor General, are duly honoured. It is his argument that any other view would involve rewriting of Section 15, as Section 15 contemplates the rate of duty to be the rate of duty for the day. There cannot be two rates of duty at a given point of time. If the rate of duty, on a proper interpretation of the Notification would hold the field at all points of time during the whole of 16.02.2019 at which the respondents may have presented the Bills of Entry in tune with the prevailing rates of duty which would have been applicable otherwise, it would not detract from the power of authority to reassess on the strength of an instrument like the Notification. What would logically and inexorably follow, in other words, is that the rate of duty applicable during the whole of the day on 16.02.2019 was only the increased rate of duty. This was, therefore, the correct rate of duty at which the importers were to pay the duty. There is no illegality involved in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. 73. In an enquiry, as to the priority of title, the fractions of the day, undoubtedly, will assume relevance. In fact, the exact time at which a document is registered, will determine the question of priority, and consequently, of title itself, to the property concerned and it is open to parties to adduce evidence in this regard. 74. Section 47 of the Registration Act, 1908, reads as follows: 47. Time from which registered document operates.-A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. Here again, the time of the day may become decisive. The recent decisions of this Court in regard to insurance contracts appear to accept the significance of the time of the day. (See para 56 of this judgment). 75. Section 5(1) of General Clauses Act, 1897 reads as follows:- 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court considered the question, it may be noticed that the Constitution of India was not in force. The matter has not been approached on an analysis as to the nature of subordinate legislation and the point of time when a subordinate legislation comes into force. The concept of State action, satisfying the requirement of it being fair, as is the mandate of Article 14, could not have been possibly considered by the learned Judges of the Madras High Court. Under the Customs Act read with the Tariff Act, as noticed, the Scheme provides for an importer, wishing to enter goods for home consumption, to file Bills of Entry, do self-assessment and pay the duty on the same day. If all goes well, which means that the selfassessment is in accordance with the existing law, and the rate of tax is calculated with reference to the rate of duty as stipulated and the amount of duty is paid, and if there is any other amount to be paid, the same is also paid, Section 47 of the Act would oblige the Officer, unless, of course, the goods are prohibited goods, to issue an Order permitting clearing the goods. Though, there is no Order for clearing the goods in these cases under Section 47, the said Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, examination, attesting of the goods, it cannot mean that it will empower the Officer to alter the rate of duty which is prevalent at the time of the self-assessment following the due presentation of the Bill of Entry. If it is otherwise, it will be open to the Department to reopen cases of concluded assessments by virtue of the deemed completion of assessment under Regulation 4(2) without any legal justification. That would be plainly impermissible being illegal. This is not a case where the assessment is assailed on any other ground except by insisting on a rate of duty which is in applicable. WHETHER THE CASE LAW RELIED UPON BY THE APPELLANTS MILITATE AGAINST THE AFORESAID VIEW 81. The question which arose before the Constitution Bench of this court in M/s. Bharat Surfactnts (P) Ltd. v. Union of India 1989 (4) SCC 21 may not assist the appellants. The case involved a challenge to Section 15(1)(a) of the customs Act. This court repelled the challenge. More importantly, that was a case where the vessel in which the goods were carried belonging to the petitioners arrived on 11th July 1981. Berth was not available. By reason of the same it could not discharge its cargo at Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry for warehousing, the date of clearance of the goods determined the rate under section 15(1)(b) as it stood. It does not have any effect qua the facts of the case before this Court except that what determines the date of the rate will be found from Section 15 of the Customs Act. 82. Coming to the decision of this Court in Raj Kumar Yadav v. Samir Kumar Mahaseth 2005 (3) SCC 601, the facts of the case was that an election petition was presented on 27.8.2003 after the designated judge had retired to his chamber at 4.15 p.m.. The last date of limitation was 27.8.2003. The court inter alia held as follows: 6. The limitation provided by Section 81 of the Act expires on the 45th day from the date of election. The word day is not defined in the Act. It shall have to be assigned its ordinary meaning as understood in law. The word day as per English calendar begins at midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context. (See Ramkisan Onkarmal Agrawal v. State of Maharashtra [AIR 1994 Bom 87 : 1994 Mah LJ 369] , AIR at p. 94, Municipal Council of Cuddalore v. S. Subrahmania Aiyar [16 MLJ 101 : ILR (1906) 29 Mad 326] a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dowl at pp. 834-35). The word date is much more commonly descriptive of a day than of any smaller division of time (per Stormonth Darling, L.O., Simpson v. Marshall [37 Sc LR 316] Date means day, so that where a cover note providing for temporary insurance of a motor car expires 15 days after date of commencement it runs for the full 15 days after the day on which it was to commence (Cartwright v. MacCormack [(1963) 1 WLR 18 : (1963) 1 All ER 11 (CA)] ). XXX XXX XXX XXX 11. The inevitable conclusion is that the expression date fixed for the performance is a crystallised notion. This is clear from the fact that the second part time from which period begins to run refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on when the plaintiff has notice that performance is refused . Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. 12. Whether the date was fixed or not the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Election Commission should be the Returning Officer. 14. In Paynter v. James [(1866-67) LR 2 CP 348] , Bovil, C.J., quoted, with approval, the passage from the judgment of Tindal, C.J., in Regy v. Humphery [10 Ad E 335] , in which the following occurs: we hold it therefore to be unnecessary to refer to instances of the legal meaning of the word upon which, in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject-matter of the enactment. 15. Bovill, C.J., observed that that is a very clear statement of the various meaning of the word on or upon . 16. In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day. It would lead to great confusion if it were held that a candidate would be entitled to qualify for being chosen to fill a seat till the very end of the date fixed for scrutiny of nominations. If the learned Counsel for the petitioner is right, the candidate could ask the Returning Officer to wait till 11.55p.m. on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very nature, delegated legislation is legislative in character but if it is to be a Central Act within the meaning of Section 5 of General Clauses Act, it must be made by the legislature. Delegated legislation which is called administrative legislation in England, is exercise of legislative power by the executive. It is to be further noticed the fact that the notification issued under Section 8A is in the exercise of its legislative power or that it may have to be read in the same manner as if it is a part of the Act, will not detract the Court from ascertaining as to who is the author of the exercise of the legislative power, namely, whether it is an exercise of power by the legislature or by its delegate. Upon answer to the question, namely, that the author of the legislative effort is the executive, the question would necessarily arise as to whether there is publication. In the scheme of the Customs Act, the Tariff Act and the 2018 Regulations, the time at which the notification under Section 8A is published would indeed have relevance as already found. 86. In this view of the matter, the Appeals are found to be without merit and the same will stand dismissed. JUSTICE K. M. JOSE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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