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TMI Blog2024 (5) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 but the same was undisputedly published in the Official Gazette on 24.02.2013, therefore the relevant date of entry inwards of the goods covered under bill of entry dated 20.12.2012, the notification had not come into effect, therefore, the safeguard duty is not applicable in the present import. He submits that even though the Notificaiton issued at a particular date but the notification would be effective only after it is published in the Official Gazette. He placed reliance on the following judgments: * UOI vs G S Chatha Rice Mills 2020 (374) ELT 289 (SC) * Adani Wilmar Ltd. 2023 (2) CENTAX 325 (Guj.) * Adani Wimar Ltd. 2023 (384) ELT 321 (Tri. Bang.) * Faqir Chand Vinod Kumar 2023 (386) ELT 117 (Tri. Mum) * Param Industries Ltd. 2002 (150) ELT 3 (kar.) * M.D. Overseas Ltd. 2017 (353) ELT 12 (Guj.) * Jindal Industries 2002 (145) ELT 508 (Del.) * Kundan Rice Mills 2017 (352) ELT 184 (Tri. Del.) 3. Shri M.G. Rayka, learned Additional Commissioner (Authorised Representative) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (5) The duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of four years from the date of such imposition: "[Provided that if the Central Government is of the opinion that such article continues to be imported into India from the People's Republic of China so as to cause or threatening to cause market disruption to domestic industry, the Central Government may, notwithstanding the measures taken by the domestic industry towards adjustment to such market disruption orany threat arising thereof, if considers necessary that such duty should continue, extend the period of imposition of such safe guard duty for a period not beyond the period of ten years from the date on which the safeguard duty was first imposed.] [(5A) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, includingthose relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the learned counsel for the appellant. The Hon'ble Supreme Court in the case of GS Chatha Rice Mills (supra) considering the issue of effect of notification date passed the following order: "154. Reliance placed on the judgments Video Electronics Pvt. Ltds and Another v. State of Punjab and Another; [1990 (3) SCC 87], Tamil Nadu Electricity Board and Another v. Status Spinning Mills Limited and Another; [2008 (7) SCC 353] of this Court, taking the view that the Schedule to an act is a part of the act and therefore an amendment to the Schedule by virtue of such a notification is an amendment to the Act itself and therefore, the notification issued under Section 8A of the Tariff Act partakes the character of legislation, is clearly untenable, if it is intended to convey that the notification issued under Section 8A of the Tariff Act is made by the legislature itself. By its 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into effect only on 6-3-2018, on which date it was published in the Official Gazette after it was digitally signed for e-publication. The Commissioner (Appeals), was also not justified in distinguishing the cases cited by the appellant only for the reason that an amendment had been made in Section 25(4) of the Customs Act in 2016." The issue of date of effect of notification has been considered by Mumbai Bench of this Tribunal in the case of Faqir Chand (supra) wherein following has been observed: "10. We are, therefore, of the considered view that both the notifications issued under Section 25 of the Customs Act and Section 8A of the Customs Tariff Act stand on similar footings for being delegated legislation for not being an Act or Regulation as has defined in the General Clauses Act, for which fraction of time could have been ignored and Section 5(3) of the General Clauses Act, 1897 would not be applied to these notifications, as otherwise contrary is expressed by way of insertion of deeming provisions in Regulation 4(2) of Regulation 2018, and in enabling provision of Section 46 of the Customs Act, while Sections 15(1)(a), 17, 46(1) and 47(2)(a) Constitute one compos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods by notification in the official gazette in respect of notified goods of specified description from whole or part of Customs duty leviable, therefore, notification in the official gazette is the only way through which Central Government can exempt notified goods from levy of Customs duty and the same can never be done otherwise like preparing an office note and made effective upon being dispatched for publication in the official gazette, apart from the fact that sub-section (4) prescribing for coming into force of such notification to the date of its issue is conditional/subjected to "provisions otherwise provided" and since such provision is expressively provided in Section 25(1), Section 25(4) can't operate/applied in exclusion of provision contained in Section 25(1) prescribing publication of notification in the official gazette as a pre-condition for exemption of duty or its withdrawal as has been case here. 12. It is, worth-mentioning here, that without making any observation as to the legality of the re-assessment of duty, after goods were finally assessed at 'nil' rate of duty, prior to issue of Notification No. 93/2017-Cus. under Section 25 of the Customs Act lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the same day. 4th and 5th were public holidays and hence notification must have been published in the Gazette only after 6-8-2001 and petitioners' have also produced copy of fax message received at Cochin Excise Office which was received at 11:44 p.m. on 3-8-2001 and at that time notification was yet to be published in the Gazette as copy contains endorsement "to be published in Gazette". In the statement of objections filed by respondents it is stated that notification was issued on 3-8-2001 and published on the same day in Gazette of India and displayed on notice board of Department of Publications as admitted in the petition. The petitioners have not admitted publication of notification in Gazette on 3-8-2001 and it is specifically averred that publication in the Gazette was subsequent to 6-8-2001. Further, the petitioners have produced copy of letter dated 1-2-1990 written by Government of India, Ministry of Finance, Department of Revenue (Annexure 'E' in W.P. No. 34758/2001) addressed to the Director, Directorate of Publication, Government of India which shows that as per directions issued by earlier letter dated 12-8-1985, it was meant to restrict issuing of letters to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Board, New Delhi. Failure to do so could not make a notification effective from the date of its issue for publication. This provision added w.e.f. 1-6-1998 also shows that the date of publication in the Official Gazette and the date of its issue for publication in the Official Gazette can be different. In the present case the said notification was published in the Official Gazette on 6-8-2001 and not before 6-8-2001 and was offered for sale not before 6-8-2001. Therefore even as per the judgment of the Hon'ble Supreme Court, the said Notification is to be effective w.e.f. 6-8-2001. The learned Central Government Standing Counsel has not been able to show that it was published on 3-8-2001 and they also offered this notification for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi as per the Amendment. For our satisfaction, we granted time to the Central Government Standing Counsel to place the records. It is true that Gazette notification is admissible being the official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court in 'Harla v. The State of Rajasthan' [1952 (1) SCR 110] wherein this court formulated the aforesaid principle in the following manner :- "The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant that an Order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917 does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in our country may not necessarily be the best in another. But reasonable publication of some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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