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TMI Blog2022 (8) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods in question on the basis of the impugned notification No. 103/2020-Customs (N.T.) dated 29.10.2020 which was egazetted and digitally signed on 29.10.2020 at 23:18:25 hrs whereby Tariff Value of the subject goods was enhanced from USD 755MT to USD 782 MT is not justifiable in law since it is an admitted position substantiated by record that bills of entry relating to goods in question were already self assessed on 23.10.2020 and 26.10.2020 at the prevailing rate of duty and Entry inward was granted to the vessel in question carrying the subject goods on 29.10.2020 at 11:00 hrs which is the time prior to the time of coming into effect the aforesaid E-Gazetted Notification dated 29.10.2020 at 23:18:25 hrs. The action of the respondents customs authority charging at enhanced rate of duty on the goods in question on the basis of the aforesaid E-Gazette Notification dated 29.10.2020 by giving retrospective effect to it, is arbitrary, illegal and not sustainable in law - the respondents/authorities concerned are directed to refund to the petitioners the excess duty amounting to Rs. 96,60,467/- which was collected by the respondent customs authority on the basis of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrying the subject goods on 29.10.2020 at 11:00 hrs which is the time prior to the time of coming into effect the aforesaid E-Gazetted Notification dated 29.10.2020 at 23:18:25 hrs? (iii) Whether on the facts and in the circumstances of the case and in view of Section 15 read with Section 46 of the Customs Act, 1962 and in view of the law laid down by the Hon ble Supreme Court in the case of Union of India Ors. Vs- G.S. Chatha Rice Mills Anr. reported in 2020 SCC OnLine SC 770, charging at enhanced rate of duty on the goods in question on the basis of the aforesaid E-Gazette Notification dated 29.10.2020 by giving retrospective effect to it, is arbitrary, illegal and contrary to law? Relevant facts involved in brief in the instant case as appears from record are as hereunder. On 14.9.2020, 16.9.2020, 02.10.2020 and 08.10.2020 petitioner entered into four contracts dated 14.9.2020, 16.9.2020, 02.10.2020 and 08.10.2020 with its foreign supplier at Singapore for import of 14000 MTs of Crude Palm Oil of Edible Grade in Bulk. Against the aforesaid contracts aforementioned named foreign supplier supplied 13,084.71 MTs of the subject goods vide vessel MT Tiger Harmony. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the shore tank was 9947.207 MTs. The subject goods/cargo stood discharged in the shore tank on 31.10.2020 which was Saturday and 1st November, 2020 being Sunday, Out Turn Report was prepared on 02.11.2020. Petitioner submitted that on 04.11.2020 reassessment of the subject bills of entry lead to payment of excess amount to the tune of Rs. 96,60,467/- which amount petitioner is claiming refund. In regard to six subject Bills of Entry Nos. 9265797, 9265801 and 9266091 all dated 21.10.2020 and Bill of Entry Nos. 9272115, 9275141 and 9276627 all dated 22.10.2020, additional basic customs duty was to the tune of Rs. 73,56,538/- and additional social welfare surcharge and IGST to the tune of Rs. 21,21,134/- and in regard to one subject Bill of Entry No. 9277219 dated 22.10.2020, additional basis customs duty was to the tune of Rs. 1,41,884/- and additional social welfare surcharge and IGST to the tune of Rs. 40,909/-. The aforesaid amounts were paid by the petitioner vide seven receipts all dated 4.11.2020. Petitioner submitted that on 3.11.2020 and 4.11.2020 on account of reassessment of the subject Bills of Entry, it wrote letters to the respondents, which were duly received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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.] (2) The provisions of this section shall not apply to baggage and goods imported by post. 17. Assessment of duty (1) After an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50, shall, save as otherwise provided in Section 85, self-assess the duty, if any, leviable on such goods. (2) The proper officer may verify the entries made under Section 46 or Section 50 and the self-assessment of goods referred to in sub-section (1) and for this purpose, examine or test any imported goods or export goods or such part thereof as may be necessary: [PROVIDED that the selection of cases for verification shall primarily be on the basis of risk evaluation through appropriate selection criteria.] (3) For the purpose of verification under sub-section (2), the proper officer may require the importer, exporter or any other person to produce any docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges in such manner as may be provided by rules.] (2) The importer shall pay the import duty (a) on the date of presentation of the bill of entry in the case of self-assessment; or (b) within one day (excluding holidays) from the date on which the bill of entry is returned to him by the proper officer for payment of duty in the case of assessment, reassessment or provisional assessment; ............................................. 68. Clearance of warehoused goods for home consumption Any warehoused goods may be cleared from the warehouse for home consumption, if - (a) bill of entry for home consumption in respect of such goods has presented in the prescribed form; (b) the import duty, interest, fine and penalties payable in respect of such goods have been paid; and (c) an order for clearance of such goods for home consumption has been made by the proper officer: [PROVIDED that the order referred to in Clause (c) may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria: ............................ Learned counsel appearing for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods are imported. Under the proviso to Section 46(3), a bill 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 self-assessment 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 copy of the bill of entry is electronically transmitted to the authorized person. 42. In terms of the provisions of Section 15(1)(a), in the case of goods which are entered for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 self-assessment 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. 66. It is with these principles of interpretation in mind that we must evaluate the submission which was urged by Mr Nataraj, on behalf of the Union, that upon the issuance of a notification enhancing the rate of duty under Section 8A of the Customs Tariff Act, the date on which the notification was issued will govern the rate applicable to all bills of entry, including those which were presented before the enhanced rate was notified. The submission cannot be accepted for several reasons. For one thing, it mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploaded on the e-Gazette treat it as being in existence with effect from midnight or 0000 hours on 16 February 2019. The consequence of this interpretation would be to do violence to the language of Section 8A(1) of the Customs Tariff Act, and to disregard the meaning, intent and purpose underlying the adoption of provisions in the Customs Act in regard to the electronic filing of the bill of entry and the completion of self-assessment. 95. 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). 100. 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 provisions of Section 8 of the Information Technology Act, 2000, it has been decided in consultation with Department of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oaded and published in the official gazette. The relevant excerpt from page 41 of the High Court s judgment is quoted below: .The notification was published electronically on 6.3.2018. In view of the decision taken by the Government of India in terms of Section 8 of the Information Technology Act, to avoid physical printing of Gazette notification to publish the same exclusively by electronic mode, so as to attribute knowledge to the public at large. The notification was signed by Rakesh Sukul on 6.3.2018 at 19:15:13 + 05'30'. When notification needs to be signed digitally and only when the notification was uploaded and published in the Official Gazette, the same is made available for public. 106. With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification 5/2019, which is akin to the exercise of delegated legislative power, under 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 publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 re-assessment. The interpretation based on time of publication is in harmony with a view that accords respect for vested rights. Considering the facts and circumstances of the case as appears from record, submission of the parties, relevant provisions of law and the aforesaid judgment of the Hon ble Supreme Court in the case of G.S. Chatha Rice Mills Anr. (supra), I am inclined to allow this Writ Petition by holding as follows: (i) As per Section 15 of the Customs Act, 1962, for determination of the rate of duty and valuation of imported goods, in the case of goods in question which entered for home consumption under Section 46 of the Customs Act, not only the date on which the bills of entry in respect of the goods is presented is the only criteria rather the time of presenting the bill of entry on the said date is also an essential criteria for determination of rate of duty on the goods in question. (ii) Action of the respondents customs authority concerned charging at the enhanc ..... 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