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TMI Blog2021 (8) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... ASSISTANT COMMISSIONER OF CUSTOMS (REFUNDS) [ 2018 (7) TMI 39 - MADRAS HIGH COURT] wherein after considering a catena of decisions on the point, it was held that after a subsequent act amends an earlier one in such a way as it incorporates itself or a part of itself into the earlier, the Act must be construed as 'retrospective'. The department has misapplied the explanation to Section 25 of the Act with regard to the coming into force of a notification. There appears to be no dispute as to on what date the notification was published, but, when was it given effect to by operation of law. Then, it has to be held that the notification is retrospective, as it is an amendment by substitution. The learned Single Bench has considered this aspect and has observed that it is true that the notification reads that it is a substitutive amendment, but has denied the relief to the petitioner on the ground that it is an accrued liability - Admittedly, on the date when the show cause notice was issued dated 29.01.2018, the exemption notification stood amended by issuance of Notification No.34/2015. Therefore, the question of treating the amount of duty as an accrued liability is incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad an effective alternate remedy of filing an appeal before the Commissioner of Customs [Appeals], the appellant chose to file a writ petition on the ground that the show cause notice as well as the order-in-original demanding duty and imposing penalty is without jurisdiction. The contention advanced by the appellant was that Notification No.52/2003, stood amended by Notification No. 34/2015, by which, certain conditions contained in paragraph 3 of Notification No.52/2003 was substituted. Paragraph No.3 of the Notification No.52/2003 dated 31.03.2003, reads as follows: (3) The unit executes a bond in such form and for such sum and with such authority, as may be specified by the said officer, binding himself,- (a) to bring the said goods in to the unit or and use them for the specified purpose mentioned in clauses (a) to (e) in the opening paragraph of this notification; (b) .... (c) .... (d) to pay on demand- (I) an amount equal to duty leviable on the goods and interest at a rate as specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue) issued under Section 28AB of the said Customs Act on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndan, learned Counsel appearing for the respondents. 5. As noticed above, there is no dispute as to the fact that the condition imposed with regard to the date of installation or period within which installation has to take place stood amended by Notification No. 34/2015 dated 25.05.2015. In the said amended notification, it has been specifically stated that the amendment is by way of substitution. If such is the position, we need to consider as to what would be the effect of a substituted resolution or the substituted notification. This issue is no longer res integra and has been considered in several decisions and one of which being 2018 (364) E.L.T. 27 (Mad.) [Mehler Engineered Products India Pvt. Ltd., Vs. Union of India], wherein after considering a catena of decisions on the point, it was held that after a subsequent act amends an earlier one in such a way as it incorporates itself or a part of itself into the earlier, the Act must be construed as 'retrospective'. The operative portion of the judgment reads as follows: 8. To be noted that the notification uses the word 'substituted'. The word 'substituted' has been used to mean that whereve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted in MANU/TN/6295/2018, it has been held as follows: 18. The Hon'ble Supreme Court in the case of Government of India vs. Indian Tobacco Association [MANU/SC/0502/2005 : 2005 (187) E.L.T. 162 (S.C.) explained the meaning of the word 'substitute' on the following lines: 15. The word substitute ordinarily would mean to put (one) in place of another , or to replace . In Black's Law Dictionary, Fifth Edition, at page 1281, the word substitute has been defined to mean To put in the place of another person or thing , or to exchange . In Collins English Dictionary, the word substitute has been defined to mean to serve or cause to serve in place of another person or thing , to replace (an atom or group in a molecule) with (another atom or group) ; or a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague. 19. Thus, the 'substitution' by way of an amendment dated 31.12.2008 has to be read to put in place instead of the Rule, which was in existence prior to the said Notification. In other words, it has to be read as a replacement of an existing Rules. 20. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the second respondent had properly interpreted the same. In fact, in the reply to the show cause notice, the appellant has specifically mentioned that the machinery has been installed or otherwise used within the unit within a period of validity of Letter of Permission, which was valid till 22.07.2019. While dealing with the said issue, the second respondent has stated that the amended Notification No.34/2015, does not have any retrospective effect and it is effective only from the date of issue ie., 25.05.2012. This finding rendered by the second respondent is on a wrong understanding of the legal provision. 9. In the counter affidavit filed in the writ petition, the department has misapplied the explanation to Section 25 of the Act with regard to the coming into force of a notification. There appears to be no dispute as to on what date the notification was published, but, when was it given effect to by operation of law. Then, it has to be held that the notification is retrospective, as it is an amendment by substitution. The learned Single Bench has considered this aspect and has observed that it is true that the notification reads that it is a substitutive amendment, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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