w w w . L a w y e r S e r v i c e s . i n



Director General of Foreign Trade & Others v/s Ruia Cotex Ltd & Another


Company & Directors' Information:- RUIA COTEX LIMITED [Not available for efiling] CIN = U99999DL1993PLC055086

Company & Directors' Information:- H N COTEX PRIVATE LIMITED [Active] CIN = U17120GJ2013PTC075910

Company & Directors' Information:- N B COTEX PRIVATE LIMITED [Active] CIN = U17200MH2011PTC219248

Company & Directors' Information:- I TRADE LIMITED [Active] CIN = U67120TN1999PLC043813

Company & Directors' Information:- S K COTEX LIMITED [Active] CIN = U17231HR1994PLC032315

Company & Directors' Information:- K. S. COTEX (INDIA) PRIVATE LIMITED [Active] CIN = U17300MP2011PTC025847

Company & Directors' Information:- TRADE INDIA LTD [Active] CIN = U51909PB1982PLC004822

Company & Directors' Information:- V. T. COTEX PRIVATE LIMITED [Active] CIN = U17120GJ2012PTC071478

Company & Directors' Information:- R P TRADE PRIVATE LIMITED [Active] CIN = U51909AS1999PTC005646

Company & Directors' Information:- D K COTEX PRIVATE LIMITED [Strike Off] CIN = U17110MH2005PTC157107

Company & Directors' Information:- RUIA AND RUIA PRIVATE LIMITED [Active] CIN = U51900MH1969PTC014329

Company & Directors' Information:- A R TRADE IN PRIVATE LIMITED [Active] CIN = U51909AS1999PTC005710

Company & Directors' Information:- S 3 M TRADE PRIVATE LIMITED [Active] CIN = U74900WB2013PTC193812

Company & Directors' Information:- S B COTEX PRIVATE LIMITED [Active] CIN = U17300MP2009PTC022644

Company & Directors' Information:- R K COTEX PRIVATE LIMITED [Active] CIN = U17200DL2010PTC202564

Company & Directors' Information:- RUIA AND COMPANY PRIVATE LIMITED [Active] CIN = U74999MH1960PTC011837

Company & Directors' Information:- C TRADE (INDIA) PRIVATE LIMITED [Active] CIN = U74900KA2008PTC045372

Company & Directors' Information:- I-W TRADE PRIVATE LIMITED [Strike Off] CIN = U93030MH2012PTC233832

Company & Directors' Information:- U M TRADE PRIVATE LIMITED [Active] CIN = U67190MH2011PTC224523

Company & Directors' Information:- D P M TRADE PRIVATE LIMITED [Strike Off] CIN = U28112MP2004PTC016527

    Appeal From Order No. 404 of 2010, 405 of 2010, Writ Petition No. 1466 of 2004

    Decided On, 19 June 2020

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SANJIB BANERJEE & THE HONOURABLE MR. JUSTICE KAUSIK CHANDA

    For the Appearing Parties: Vipul Kundalia, Siddharth Lahiri, Somnath Ganguly, Aishwarya Rajyashree, Arijit Chakraborty, Chayan Gupta, Soumyajyoti Nandy, Advocates.



Judgment Text

Kausik Chanda, J.These two appeals arise out of a common judgment and order dated August 25, 2009, passed by the learned Single Judge allowing the writ petition. Both the appeals are being disposed of by this co`mmon judgment.2. The facts leading to filing of these appeals, in brief, are as under.3. The writ petitioner No.1 is a company, registered under the Companies Act, 1956 (hereinafter referred to as the company ) and carries on business of dyeing, bleaching and finishing of cotton knitted fabrics.4. The company, on January 14, 1999, applied before the Director General of Foreign Trade for grant of ten percent customs duty licence to import three textile machines which was approved by the said authority by a letter dated February 18, 1999. On the basis of the said import licence, the company imported three textile machines which arrived in Kolkata Port in the same month. The bills of entry for the same, however, were filed by the company only on August 20, 1999 and August 23, 1999 respectively.5. At this juncture, it is necessary to notice that Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 empowers the Central Government to frame and amend export and import policy (EXIM Policy in short).6. The Department of Revenue extends any benefit of exemption enunciated in the exempt policy by making a corresponding notification in the official gazette under Section 25 of the Customs Act, 1962.7. In exercise of such power conferred under Section 5 of the said Act, the Ministry of Commerce, Central Government framed the export and import policy for the period 1997-2002. (hereinafter referred to as EXIM Policy 1997-2002).8. The corresponding customs notification to such EXIM Policy 1997 - 2002 issued under Section 25 of the Customs Act, 1962 was published by a notification No. 29/97-Cus. dated 1st April, 1997.9. As per the EXIM Policy 1997-2002 and the corresponding customs notification issued under Section 25 of the Customs Act, 1962, such licence attracted ad valorem customs duty @ 10% on the cost, insurance and freight (CIF) value of the imported capital goods.10. The aforesaid EXIM Policy 1997-2002 was amended by the Ministry of Commerce, Government of India by a notification No. 1(RE-99)/1997- 2002 effective from 1st April, 1999 allowing importation of textile machinery as capital goods for zero customs duty, subject to export obligation.11. Ministry of Finance (Department of Revenue) issued the corresponding notification No. 122/99-Cus. dated November 04, 1999. In other words, though the Ministry of Commerce allowed importation of textile machinery for zero customs duty with effect from 1st April, 1999, the Ministry of Finance issued the corresponding exemption notification under Section 25 of the Customs Act only on November 04, 1999.12. In view of the amended EXIM Policy, the company made several representations before the Director General of Foreign Trade for converting the said ten per cent customs duty licence to zero duty licence. The Director General of Foreign Trade, however, turned down such prayers.13. The company, under protest, paid ten per cent customs duty, and the said goods were released by the customs authorities in the port at Kolkata. The company, thereafter, claimed the benefit of the amended EXIM Policy and requested the customs authorities for refund of a sum of Rs.12,44,509.80/- which was paid as ten per cent of the CIF value of the goods.14. The customs authorities refused to refund the duty. Such refusal was challenged by the company by way of filing a writ petition before this Court.15. Following the direction dated September 13, 2002, passed in the said writ petition, the Director General of Foreign Trade by a reasoned order dated July 30, 2003, rejected the claim of the company.16. In the said order, the Director General of Foreign Trade noted that the Policy Interpretation Committee of Director General Foreign Trade held a meeting on December 16, 2002, and viewed that the EXIM Policy could not be over-ruled or diluted for delayed publication of the customs notification and agreed that the company was entitled to import the textile machinery at zero duty as per the applicable provision of the EXIM Policy.17. However, the Director General of Foreign Trade held that though the company was entitled to import the textile machinery at zero duty under the amended EXIM Policy, but as the corresponding customs notification was issued only on November 04, 1999 without any retrospective effect, no relief could be provided to the company.18. The said order of the Director General of Foreign Trade was challenged by the company by way of filing the present writ petition and the learned Judge by the order impugned held that the customs notification being No. 122/99-Cus. dated November 04, 1999, would apply retrospectively from the date of introduction of the policy of the Central Government and directed the authorities to give the benefit of zero per cent customs duty to the company.19. The Director General of Foreign Trade and the customs authorities by filing two separate appeals have challenged the order of the Single Judge on twofold grounds. Firstly, it has been contended that the notification issued under the Customs Act has no retrospective effect and, as such, the company cannot claim exemption under the said notification and secondly, it has been contended that the relevant goods arrived in Kolkata Port in the month of February, 1999, and as such the company was not entitled to the benefit of the amended EXIM Policy 1997-2002.20. The company, on the other hand, supporting the order of the learned Single Judge, strenuously argues that it is the date of filing of bill of entry which is relevant for determination of customs tariff. The company suggests that the EXIM Policy was amended with effect from 1st April, 1999 and the bills of entry were filed only in the month of August. Therefore, in terms of provision of Section 46 read with Section 15 of the Customs Act, 1962, the company is entitled to the benefit of zero customs duty. The company, in this regard, refers to the judgment reported at (M/s. Bharat Surfactants Pvt. Ltd. vs Union of India, (1989) AIR SC 2054).21. It has, further, been argued that the company cannot be deprived of the amended EXIM Policy for belated issuance of the corresponding customs notification.22. It has also been contended that the customs notification dated November 04, 1999, should be read as retrospective and any contrary interpretation would defeat the very object of extending benefits of zero customs duty conferred by the amended EXIM Policy. To buttress the argument, the company places reliance upon the judgment reported at (Government of India -Versus- Indian Tobacco Association, (2005) AIR SC 3685).23. Therefore, the question which is essentially posed for consideration in these appeals is whether the imported goods were exempted from customs duty.24. The company applied for ten percent customs duty import licence in the month of January, 1999 which was approved on February 18, 1999. The imported goods admittedly reached Kolkata Port in the same month. As per Section 2(e) of the Foreign Trade (Development and Regulation) Act, 1992, import means bringing into India any goods by land, sea or air from a place outside of India. Therefore, importation of the said three textile machines had completed in the month of February, 1999. In such a fact scenario, the company was not entitled to get the benefit of the amended EXIM Policy since the same was operative on and from April 01, 1999.25. The Director General of Foreign Trade, therefore, was wrong in holding that the company was entitled to import at zero duty under the amended EXIM Policy.26. Since the amended EXIM Policy itself did not yield any benefit to the relevant import items, the corresponding customs notification, issued to give effect to the amended EXIM Policy, was, therefore, totally inapplicable to the company. The delay in issuing such notification was also, therefore, inconsequential in the given facts.27. Section 15 of the Customs Act, 1962 provides for date for determination of rate of duty and tariff valuation of imported goods. As per Section 15 (1) (b) of the said act, the rate of duty and tariff valuation shall be the rate and valuation in force, in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that section.28. Section 46(3) of the Customs Act, 1962 as substituted by the Finance Act, 2017 (7 of 2017) dated 31.03.2017, mandates an importer to present a bill of entry before the end of the next day following the day (excluding holidays) on which the vessel carrying the goods arrives at a custom station. Unamended Section 46(3) of the Customs Act, 1962 which was in force at the relevant point of time, however, allowed a bill of entry to be presented at any time after the delivery of the import manifest or import report.29. It needs to be appreciated that date of filing of bill of entry in terms of Sections 15 and 46 of the Customs Act, 1962 is relevant to an exemption notification issued under Section 25 of the said Act only. Such date of filing of bill of entry is not relatable to the Foreign Trade (Development and Regulation) Act, 1992 or any notification or policy promulgated thereunder.30. It has already been noticed that the customs notification issued under Section 25 of the Customs Act, 1962 had no manner of application to the relevant import. The date of filing of bill of entry was, therefore, wholly irrelevant.31. The facts in Bharat Surfactants (Supra) are totally distinguishable from the present case. In the said case the bill of entry was filed before the arrival of goods in the relevant port and it was held by the Supreme Court that the relevant date for applicable rate would be the date of filing of the bill of entry. Here, the date of filing of bill of entry is not a relevant factor at all.32. In view of the discussion above, the question whether the relevant customs notification was retrospective in nature becomes academic. However, since the Director General of Foreign Trade had declined to grant relief to the company holding that the said notification had no retrospective effect and the learned Single Judge, on the other hand, allowed the writ petition taking a contrary view, the said issue is also addressed.33. The aforesaid notification dated November 04, 1999, was introduced for further amending the notification No. 29/97-cus dated the 1st April, 1997 and giving a retrospective effect would mean that the same would relate back to 1st April, 1997. The amended EXIM Policy was made effective from 1st April, 1999. Such interpretation, therefore, leads to an absurdity where the customs notification would be made operative even before the EXIM Policy came into being.34. The learned Single Judge was persuaded by the word substitution as appeared in the said notification dated November 04, 1999 to construe the said notification as retrospective. Though, the word substitution has been used in the amending notification, in substance, two new import items namely, textile and chemical sectors were introduced to exempt levy of customs duty.35. If the law maker, by way of amendment, introduces anything which was left out or omitted by mistake in the original provision, then such amendment may operate retrospectively with effect from the date of the original provision.36. The relevant amendment in the customs notification has not been made for rectification of any such mistake. Two additional import items were introduced to give effect to the a

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mendment of the EXIM Policy. The inclusion of the import items namely, textile and chemical sectors , if construed to be operative retrospectively, then the same would entail refund of all customs duties already levied under the ten per cent customs duty regime. Such a consequence was never the intendment of the amendment.37. In Indian Tobacco Association (Supra), the Supreme Court dealt with an amendment of a notification by which some more seaports and inland container depots were included for exemption for payment of additional customs duty. It was held by the Supreme Court that such addition in the name of substitution was retrospective in nature as the amendment was introduced to rectify the mistakes. Here, the relevant amendment was not introduced to remedy any mistake. The said case, therefore, is of no assistance to the company.38. For the reasons above, the order of the learned Single Judge dated August 25, 2009 is liable to be set aside and the same is hereby set aside. As a consequence W.P No. 1466 of 2004 is dismissed.39. Apo 404 of 2010 and APO of 405 of 2010 are allowed accordingly without any order as to costs.40. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.I agree.
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