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TMI Blog1986 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Aluminium scrap entered into the territorial waters of India and docked at Calcutta on 5th January, 1981. 6. On such arrival of the ship the petitioners filed two separate Bills of Entry for warehousing the said scrap. 7. Thereafter on or about 21st March, 1981, the petitioners filed Bills of Entry for clearance of the goods for home consumption and paid the import duties thereon as assessed. On 30th March, 1981, the petitioners took delivery of the goods from the Bengal Bonded Warehouse after the same were released by the Customs Authorities. 8. On or about 25th September, 1981, the petitioners were surprised to receive two show cause notices from the respondent No. 4, the Assistant Collector of Customs, seeking to claim Customs duty at the enhanced rate of 86% ad valorem on the basis of a notification dated 30th March, 1981. 9. Upon enquiry the petitioners came to learn that on 30th March, 1981, the Central Government in purported exercise of its powers under section 25(1) of the Customs Act had made and published two notifications rescinding the earlier notification dated 1st January, 1981, and imposing additional duty at the rate of 24 per cent ad valorem on Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er reported in 1981 Tax LR 2763. 18. In this connection, it may be recalled here that this Court in its recent decision in the Indian Rayon Corporation Ltd. Another v. Union of India Others (Matter No. 1270/1979) and Mahalaxmi Fibres Industries Ltd. Another v. The Collector of Customs and Others (Matter No. 1297/1979) has disagreed with the aforesaid view. 19. It has been held in the said decision that though it is true that in view of the definition of 'India' as given in section 2(27) of the Customs Act, importation takes place as soon as the goods enter the Indian Territorial waters, the goods retain their character as imported goods till the date of their clearance for home consumption in view of the definition as given in Section 2(25). Section 12 of the Customs Act provides that goods imported into India shall be leviable to customs duty. But as it is true that the goods acquire the character of 'imported goods' no sooner they enter the Indian territorial waters, it is equally true that they do not cease to be imported goods immediately thereafter and continue to be so till they are cleared. Thus, though the goods become leviable to duty as soon as they are import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as already seen, entered the Indian territorial waters on 5th January, 1981 when the exemption notification dated 1st January, 1981 was in force but on the date the goods were cleared for home consumption from the Bonded Warehouse, i.e. on 30th March, 1981, the impugned notification had come into force, making the petitioners liable to pay customs duty at the rates prescribed therein in view of section 15(l)(b) of the Customs Act, which provides that the rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, in the case of goods cleared from a warehouse, on the date on which the goods are actually removed from the warehouse. 23. However, Mr. Gupta's contention in this connection was that the impugned notification could not be said to have come into force on 30th March, 1981 since the official gazette publishing the notification could not be made public on the very same date. 24. In this connection Mr. Gupta referred me to two decisions of the Allahabad High Court in U.S. Awasthi v. Income Tax Appellate Commissioner (1977) 107 ITR 796 and Kishen Lal v. I.A.C. (1983) 142 ITR 312 where it has been held that the publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case it is not Mr. Gupta's contention that the impugned notification dated 30th March, 1981 did not become operative at the time of the clearance of the goods on account of its not having been actually published in the official gazette on that very date and that being so, it is immaterial whether it was made available to the public simultaneously or not. 29. Coming to the question of applicability of the doctrine of promissory estoppel to a notification issued under Section 25 of the Customs Act, Mr. Gupta was fair enough to concede that such a notification is a piece of delegated legislation but at the same time he contended that if any time limit is specified in such notification indicating that it should remain in force upto the said period, the portion of the notification fixing such time limit should be deemed to have been issued by the Central Government in exercise of its executive power since section 25 of the Customs Act does not vest any such power on the Government. And in that event the Government would be barred by the doctrine of promissory estoppel from withdrawing, altering or rescinding such notification before the time limit so fixed expires, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta, the learned Counsel for the petitioners, that in the matter of withdrawing or modifying a time-bound notification it was the duty of the Government to satisfy the Court the exact nature of the public interest which prompted it to take such actions. But this argument again does not seem to be acceptable because in the absence of anything to the contrary the normal presumption would be that while acting under Section 25(1), the Government acted in accordance with the said Section. There can be no presumption that while exercising statutory powers the Government acted against the statutory provisions. Thus issuance of a statutory notification under Section 25(1) presupposes that it was issued in the public interest which is a sine qua non for the purpose. 36. Accordingly, in my judgment, it is not necessary that whenever a notification is issued under Section 25(1) of the Customs Act the Government is duty bound to disclose the exact nature of the public interest to make it operative. 37. Mr. Gupta's last contention was that the impugned notification was bad in law since it was issued with retrospective effect. But this contention does not appear to have much substance in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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