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


Ruchi Infrastructure Limited v/s Government of India & Another

    Special Civil Application No. 7934 of 2010
    Decided On, 23 November 2017
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE AKIL KURESHI & THE HONOURABLE MR. JUSTICE A.Y. KOGJE
    For the Petitioner: Dipen Desai, Advocate. For the Respondents: R1, Devang Vyas, Maithili D. Mehta, Trusha K. Patel, R2, Priyank P. Lodha, Advocates.


Judgment Text
Oral Judgment:

Akil Kureshi, J.

1. The petitioner has challenged the action of the respondents in demanding export duty on the petitioner's exports of raw cotton. The petitioner has prayed for a declaration that the Notification No. 43 of 2010 dated 09.04.2010 granting the exempt from payment of customs duty came to withdrawn become effective only from 20.04.2010 and not earlier and therefore, cannot be applied to the shipping bills of the petitioner for which let orders were issued by the authorities before such date.

2. Brief facts are as under:

The petitioner is a company registered under the Companies Act. At the relevant time, the petitioner was engaged in export of raw cotton. It is not in dispute that customs duty on such exports was exempt by virtue of notification No. 100 of 1989 dated 01.03.1989. The petitioner has on 08.04.2010 filed 03 shipping bills for export of raw cotton. The concerned authority passed three let orders on such shipping bills ranging on 09.04.2010. In other words, all exports of the petitioner covered under the said shipping bills were cleared for actual export on or before 13.04.2010.

3. The Government of India issued a Notification No. 43 of 2010 dated 09.04.2010 withdrawing the exemptions from payment of customs duty on export of raw cotton. It is not in dispute that this notification was published in official gazette on 20.04.2010 and forwarded to the Government Press for making copies thereof available to the public at large on the same day. Since according to the petitioner the export formalities were over, the notification dated 09.04.2010 published only on 20.04.2010 withdrawing the exemption would not apply. Contention of the petitioner was that the notification would come into force only upon its publication and not earlier. Petitioner was relying on sub-section (4) of section 25 of the Customs Act, 1962, as it stood at the relevant time, which provided that every notification issued under sub-section (1) or sub section (2A) unless otherwise provided come into force on the date of its issue by the Central Government for publication in official gazette and also to be published and offered for sale on the date of its issue by the Directorate of Publicity and Public relations of the Board, New Delhi. The department, however, did not accept the stand of the petitioner and was holding up the petitioner's export of goods. The petitioner, therefore, under protest paid the total duty of Rs. 36,87,832/-. The petitioner has, therefore, filed this petition seeking refund of such duty on the ground that the notification withdrawing the exemption would not apply to the exports made by the petitioner.

4. Having heard learned counsel for the parties and having perused the materials on record, it emerges that it is an admitted position that the shipping bills of the petitioner filed with the authorities on 08.04.2010 were processed and let orders were passed by the concerned authority on 09.04.2010. It is not in dispute that the question of charging duty on such exports would have to be decided on the basis of the law prevailing on such dates. It is in this background the question emerges is as to from which date the notification dated 09.04.2010 be effective? If such notification were to have effect straight away upon its issue on 09.04.2010 as is contended by the department, the petitioner must pay duty, as prescribed. However, if we were to hold the notification became effective only from the date of its publication on 20.04.2010, the petitioner must succeed. The issue is no longer res integra. In several judgements, the Supreme Court has held that both the conditions contained in sub-section (4) of section 25 as it stood at the relevant time must be satisfied for the notification to become effective in the present case.

5. Our attention is drawn to the judgment of the Supreme Court in case of Union of India and ors vs. M/s. Param Industries Ltd and ors [Civil Appeal Nos. 7801-7811 of 2004] in which, it was held and observed as under:

'What we find is that the High Court has stated that for bringing the notification into force and make it effective, two conditions are mandatory viz. (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. In the present case, admittedly, second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays.'

6. In case of M/s. M.D Overseas Ltd vs. Union of India and anr [Special Civil Application No. 20859 of 2015 dated 10.04.2017], the Division Bench of this Court following judgement of Supreme Court in case of, M/s. Param Industries Ltd and ors (supra) observed as under:

'17. What follows from the bare reading of the provisions of subsections (4)(a) and 4(b) is that the same are intrinsically connected to each other and cannot be read in isolation. On plain reading of subsection (4)(a), it can be inferred that the notification comes into force from the date it is issued by the Central Government for publication in the Official Gazette; but it is equally obligatory that the same shall also be published and offered for sale on the date of issue by the Directorate of Publicity and Public Relations of the Board. Thus, the legislature had envisaged a common date of coming into force of the notification and date of publication and sale, and hence, the expression 'the date of issue' is required to be construed accordingly, viz. when the notification is issued and is published and offered for sale. Moreover, the Supreme Court in the case of Union of India v. Param Industries (supra) has agreed with the view adopted by the Karnataka High Court whereby it has been held that 'for bringing the notification into force and make it effective, two conditions are mandatory, viz. (1) Notification should be duly published in the official gazette, (2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi.' In the light of the view taken by the Supreme Court, the respondents cannot be heard to contend that subsection (4)(b) of section 25 of the Act is only directory and not mandatory. The facts emphasized in the present case, reveal that the Notification no.1/2013Customs dated 21.01.2013 was received by the government press on 21.01.2013 at 9.45 p.m., printed on 01.02.2013 and sent to Kitab Mahal on 04.02.2013. Clearly, therefore, the Notification No.1/2013Customs, though issued on 21.01.2013, was neither published in the official gazette nor was offered for sale on the said date, and therefore, would not come into force and be operative from 21.01.2013. Under the circumstances, the said notification cannot be made applicable to the goods imported by the petitioner which were cleared on 21.01.2013.'

7. We are concerned only with the date of publication of the noti

Please Login To View The Full Judgment!
fication in the official gazette which admittedly happens to be on 20.04.2010. The notification would be effective only from such date and not earlier. The withdrawal of the exemption from export duty would therefore take effect from 20.04.2010 and onwards alone. For the petitioner's exports made before such date, customs duty cannot be levied. Consequently, the duty paid by the petitioner under protest would have to be refunded. 8. In the result, the petition succeeds, The respondent shall refund an amount of Rs. Rs. 36,87,832/- deposited by the petitioner under protest with interest at the rates prescribed by the Government of India under the Customs Act from time to time. This shall be done expeditiously and preferably before 31.01.2018. The petition is disposed of.
O R