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TMI Blog2024 (7) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... ble will be USD 1163 PMT, which was in force when the four Ex-Bond Bills of Entry were presented. Reassessment orders are hereby quashed and set aside. In ITC Ltd. [ 2019 (9) TMI 802 - SUPREME COURT] the Apex Court held that under Section 27 (2) (a) it is incumbent upon the applicant to satisfy that the amount of duty or interest of which refund has been claimed, had not been passed by him to any other person, the provision aims at preventing unjust enrichment. Petition allowed. - K. R. SHRIRAM JITENDRA JAIN, JJ. For the Petitioner : Mr. Rajesh Rawal a/w Mr. H. R. Shetty i/b H. R. Shetty and Associates. For the Respondents : Mr. Jitendra B Mishra i/b Mr/ Ram Ochani. ORAL JUDGMENT (PER K. R. SHRIRAM J.) : 1. Rule. Rule made returnable forthwith and heard finally. 2. Petitioner had entered into four contracts with one Just Oil Grain Pte. Ltd., Singapore, for import of 12,250 Mts of Crude Palm Oil of Edible Grade in Bulk (the said goods). The four contracts were dated 31st March 2021, 5th April 2021, 5th April 2021 and 16th April 2021 for 6000 Mts, 2500 Mts, 1500 Mts and 2250 Mts. respectively. The quantity actually supplied by the exporter was 12,127.577 Mts and was covered under f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 024 MTs of the said goods for home consumption. 7. The said four Ex-Bond Bills of Entry as regards 3465.024 Mts were self-assessed on 13th May 2021 as under: (i) Ex-Bond Bill of Entry No. 3938613 (for 495.004 Mts) dated 13.5.2021 was assessed at 20:17 Hours. Further Ex-Bond Bill of Entry No. 3939144 dated 13.5.2021 (for 990.006 Mts) was assessed at 20:56 Hours. Total demand payable as per the aforesaid duty structure was assessed to the tune of Rs. 3,66,10,082/- in regard to Ex-Bond Bill of Entry No. 3939144 dated 13th May 2021, which was paid vide receipt dated 3rd June 2021. Further, total demand payable as per the aforesaid duty structure was assessed to the tune of Rs. 1,83,05,078/- in regard to Ex-Bond Bill of Entry No. 3938613 dated 13th May 2021, which was paid vide receipt dated 8th June 2021. (ii) Ex-Bond Bill of Entry No. 3938622 (for 990.007 Mts) dated 13th May 2021 was assessed at 20:15 Hours. Further Ex-Bond Bill of Entry No. 3939169 dated 13.5.2021 (for 990.007 Mts) was assessed at 20:59 Hours. Total demand payable as per the aforesaid duty structure was assessed to the tune of Rs. 3,66,10,119/- in regard to Ex-Bond Bill of Entry No. 3939169 dated 13th May 2021, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 8,81,414/ which was paid vide receipt dated 9th June 2021. (c) In regard to subject Ex-Bond Bill of Entry No. 3939169 dated 13th May 2021 additional demand was made to the tune of Rs. 17,62,826/- which was paid vide receipt dated 7th June 2021 and (d) In regard to subject Ex-Bond Bill of Entry No. 3938622 13th May 2021 additional demand was made to the tune of Rs. 17,62,826/- which was paid vide receipt dated 9th June 2021. 11. Since petitioner s request is not accepted by the department, petitioner had no option but to move this court by way of this writ petition. 12. Mr. Rawal submitted that petitioner is only pressing for prayer clauses (b), (c) and (d), which read as under: (b) In alternate subject to what is stated above, issue a writ of mandamus or any other appropriate writ, order or direction that the Notification No. 47/2021-Customs (N.T.) dated 13.5.2021 is effective and operational from 21:24:11 Hour of 13.5.2021 only and not prior thereto and that the same is not applicable in the facts of the instant case; (c) Issue a writ of certiorari or any other appropriate writ, order or direction quashing the re-assessment of the subject Ex-Bond Bills of Entry Nos. 393914 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the proper officer finds during the reassessment that it was contrary to the self-assessment done by importer, except where the importer confirms his acceptance of the said reassessment in writing, the proper officer shall pass a speaking order on the reassessment within 15 days from the date of reassessment of the bill of entry. Admittedly, in this case, no such speaking order has been passed. Therefore, even if we decide to direct petitioner to file the appeal, petitioner will not even know the ground on which the reassessment was made and how the reassessment was contrary to the self-assessment done by petitioner. Petitioner, in fact, has approached this court purely on the basis of the bill of entry which was passed by the proper officer. Mr. Mishra fairly accepts the proposition of law laid down by the Apex Court in M/s G. S. Chatha Rice Mills (Supra), which simplifies our task. The Apex Court as submitted by Mr. Rawal, has held that in terms of provisions of Section 15 (1) (a) which would be the same as regards Section 15 (1) (b), time and date of presentation of the bill of entry shall determined the rate and duty of tariff value. The court held that once the bill of ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), in the case of goods which are entered for home consumption under Section 46, the date of presentation of the bill of entry determines the rate of duty and tariff valuation. Under Section 47 (2) (a), the importer is obliged to pay the import duty on the date of the presentation of the bill of entry in the case of self-assessment. Regulation 4 (2) of the Regulations of 2018 categorically stipulates when the presentation of the bill of entry is complete. Once the bill of entry is deemed to have been presented in terms of Regulation 4 (2) the rate and valuation in force stand crystalized under Section 15 (1) (a). Section 17 (4) confers a power of re-assessment on the proper officer where it is found on verification, examination or testing of the goods or otherwise-that the self-assessment has not been done correctly. In the present case the customs authorities sought to exercise the power of re-assessment on the ground of the subsequent notification enhancing the rate of duty. The fact of the matter is that self-assessment was carried out on the basis of the rate of duty which prevailed at the time of the presentation of the bill of entry. This is not and cannot be a matter of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bill of entry for home consumption. He submitted that two different rates of duty cannot be applicable on the same day. Hence, according to the submission, once a notification is issued under the Customs Tariff Act, it will be a notification in force on that date and apply with effect from the commencement of that date. **************************** 65. 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 the issue. First, the legislature does not always say everything on the subject. When it enacts a law, every conceivable eventuality which may arise in the future may not be present to the mind of the lawmaker. Legislative silences create spaces for creativity. Between interstices of legislative spaces and silences, the law is shaped by the robust application of common sense. Second, regulatory governance is evolving in India as new technology replaces old and outmoded ways of functioning. The virtual world of electronic filings was not on the horizon when Parliament enacted the Customs Act in 1962. Yet the Parliament has responded to the rapid changes which have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty which is applicable when a bill of entry is presented for home consumption under Section 46. 67. 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 the Regulations of 2018 provides when the bill of entry shall be deemed to have been filed and self-assessment completed. The legal fiction which has been embodied in Regulation 4 (2) emanates from the enabling provisions of Section 46. The provisions of Sections 15 (1) (a), 17, 46 (1) and 47 (2) (a) constitute one composite scheme. As a result of the modalities prescribed for the electronic presentation of the bill of entry and self-assessment after the entry of the electronic declaration on the customs automated system, a bill of entry number is generated by the EDI system for the declaration. Regulation 4 (2) provides for a deeming fiction in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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