Customs, Excise and Gold Tribunal - Delhi
Kumar Plywood Palace vs Collector Of Customs on 18 December, 1991
Equivalent citations: 1992(38)ECC253, 1992(59)ELT542(TRI-DEL)
ORDER P.K. Kapoor, Member (T)
1. These appeals arise out of an order passed by the Collector of Customs (Appeals) disposing of 3 appeals by a common order.
2. Briefly stated the facts of the case are that the appellants presented two bills of entry for home consumption on 7-10-1986 covering 74 crates and 79 crates respectively of "Wood Rough Peeled but not further prepared," falling under Heading 44.08 of the Customs Tariff. They also filed another bill of entry for warehousing on 9-10-1986 covering 84 crates of identical goods. This Bill of Entry was substituted by a home consumption bill of entry which was noted on 23-10-1986. The partial exemption admissible in respect of basic duty of Customs on wood and articles of wood falling under Heading No. 40.08 admissible under Notification No. 62-Cus., dated 13-7-1985 Should be 17-3-1985 - Ed. and 44.08 was withdrawn by Notification No. 439/86-Cus., dated 6-10-1986. Similarly by issue of the Notification No. 440/86-Cus., dated 6-10-1986 the exemption from auxiliary duty enjoyed by the said goods by virtue of Notification No. 311-Cus., dated 6-10-1986 Should be 13-5-1986 - Ed. was also withdrawn. The goods were assessed to duty at the revised rate of 60% Basic + 40% Auxiliary. The appellants filed a claim for refund of differential duty on the ground that the benefits in terms of Notification No. 62-Cus., dated 13-7-1985 Should be 17-3-1985 - Ed. and 311-Cus., dated 6-10-1986 Should be 13-5-1986 - Ed. was admissible in their case since these notifications were in force on 3-10-1986 when the vessel carrying the goods had entered the territorial waters of India. The Assistant Collector rejected the appellants' claim on the ground that in terms of Section 15 of the Customs Act, the relevant dates were 7-10-1986 and 9-10-1986 respectively when the Bills of Entry were presented whereas the exemption in respect of the goods in question was withdrawn by the two notifications dated 6-10-1986. The appeals filed by the appellants were also rejected on the same grounds by the Collector (Appeals).
3. On behalf of the appellants we heard the learned Advocate Shri D.N. Mehta. He referred to the Misc. application dated 2-8-1991 wherein the appellants had prayed for the admission of the fresh grounds of appeal. He stated that the point raised in the new ground was that the notifications take effect only from the date of Gazette containing the printed notifications is made available to the public. He added that the fresh ground raises a purely legal issue and pleaded it may be taken on record. Continuing his submissions Shri Mehta contended that Notification Nos. 439/86-Cus. and 440/86-Cus., dated 6-10-1986 have to be deemed as having come into force on 13-10-1986 since according to his information they were made available to the public on that day. He argued that the benefit of the Notification No. 62-Cus., dated 13-7-1985 Should be 17-3-1985 - Ed. and 311-Cus., dated 6-10-1986 Should be 13-5-1986 - Ed. was admissible to the appellants since the Bills of Entry were presented on 7-10-1986 and 9-10-1986. In support of his case Shri Mehta cited the following case law:-
(i) Union of India v. Asia Tobacco Co. Ltd. - 1990 (50) E.L.T. 29 (Mad.)
(ii) Sanjay Trade Concern v. Collector of Customs (Appeals) - 1990 (47) E.L.T. 43 (Tribunal)
(iii) Silbans International v. Collector of Customs - 1989 (14) ETR 174
(iv) Mahamed Sayeed v. UOI and Ors. - 1990 (29) ECR 74 (Calcutta)
4. On behalf of the Revenue we heard the learned JDR Shri J.N. Nair. He confirmed that it had been verified from the concerned Department that Notification No. 439 and 440 were published on 6-10-1986 but were made available for sale to the public on 13-10-1986. He added that 2 Bills of Entry for home consumption were filed on 7-10-1986 and the Bill of Entry for warehousing was initially filed on 9-10-1986 and. renoted on 23-10-1986, for home consumption. He reiterated the points made in the impugned order.
5. We have examined the records of the case and considered the submissions made by both sides. Taking up first the plea of the appellants for taking on record the fresh ground we find that in the new ground the issue sought to be raised is purely legal in nature and in this regard they have not sought the introduction of any fresh evidence. In this regard it is seen that relying upon the decision of the Supreme Court in the case of Commissioner of Sales Tax v. Sarjoo Parsad Ram Kumar reported in 1976 (37) S.T.C. 533 the Tribunal has held in the case of Manis Press Tools Corporation v. Collector of Customs - 1990 (45) E.L.T. 328 (Tri.) that additional ground not raised before the lower authorities can be raised at the Tribunal's stage if necessary material is available on record. We, therefore, allow the new ground raised by the appellants to be taken on record.
6. Having regard to the fresh ground raised by the appellants we find that the first question that arises for consideration in this case is whether the Notification Nos. 439 and 440-Cus. had come into force with effect from 6-10-1986 i.e. the date on which they were issued or they have to be taken to have come into force only from the date on which the Gazette in which they were published was made available for sale to the public. In this regard it is seen that it is well settled that Notifications issued by the Government in exercise of power under Rule 8 of the Central Excise Rules or under Section 25 of the Customs Act, 1962 can be enforced only from the date on which they are made known to the public by making a copy of the Gazette available for sale to public. Paragraph 11 of the decision of the Madras High Court in the case of Union of India v. Asia Tobacco Co. Ltd. being relevant is reproduced below:-
"In G. Narayana Reddy v. State of Andhra Pradesh [(1975) 35 STC 319], a Bench of the Andhra Pradesh High Court held that the concerned Notification was printed on 1-12-1966, the authorities were restrained from giving effect to the Notification during the period between 1-12-1966 and 11-12-1966 (both days inclusive), anterior to the release to the public of the said Notification. Again in Yemnigarur Spinning Mills Ltd. v. State of Andhra Pradesh [(1976) 37 STC 314], a Division Bench of Andhra Pradesh High Court, when dealing with a case where a Government Order rescinding the exemption under Section 9 of the Andhra Pradesh General Sales Tax Act, 1957, with effect from 19-4-1971 by Notification dated 18-5-1971, was published in the Andhra Pradesh Gazette on 1-7-1971, held that the Notification was effective and enforceable only on and from 1-7-1971. Therefore, the conclusion is irresistible that without proper Notification, viz., without putting the public on notice, it is impossible to enforce withdrawal of exemption earlier granted. Mere printing is not enough. After printing it must be published and "publish" means that it should be made known to the public. The normal method by which the public are made known is by making the copy of the Gazette, in which the Notification is printed, available for sale to the public. In the instant case, there is indisputable proof to show that the withdrawal Notification was made available for sale to the public only on 8-12-1982. The result is that the withdrawal Notification became effective only from that date viz., 8-12-1982."
7. Similarly in the case of Mahamed Sayeed v. Union of India and Others reported in 1990 (29) ECR 74 the Calcutta High Court has held that the date of release of the publication in which the Notification is published is the decisive date to make the notification effective. The relevant extracts from para 26 of the High Court's decision is reproduced below:-
"Neither the date of the notification nor the date of the Gazette counts for 'Notification' within the meaning of the rule, but only the date when the public gets notified in the sense the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing the official Gazette and stacking them without releasing to the public would not amount to notification at all."
8. The learned JDR has confirmed that according to the concerned Department the Gazette in which Notification Nos. 439 and 440-Cus., dated 6-10-1986 were published was made available for sale to the public on 13-10-1986.
9. In view of the above discussion we hold that the benefit of Notifications No. 62-Cus., dated 13-7-1985 Should be 17-3-1985 - Ed. and 311-Cus., dated 6-10-1986 Should be 13-5-1986 - Ed. was admissible in respect of goods covered by the two bills of entry which were presented on 7-10-1986.
10. As regards the goods covered by the 3rd bill of entry which was initially noted on 9-10-1986 for warehousing and was later substituted by a home consumption bill of entry on 23-10-1986 under the orders of the Assistant Collector, Shri Mehta had contended that the goods not having been cleared from a warehouse the original date of presentation of the Bill of Entry i.e. 9-10-1986 would be the relevant date for determination of the rate of duty attracted on the goods in terms of Section 15(1) of the Customs Act, 1962. In support of his arguments Shri Mehta placed reliance on the Tribunal's decision in the case of Sanjay Trade Concern v. Collector of Customs (Appeals) reported in 1990 (47) E.L.T. 43.
11. It is seen that the copy of Home Consumption Bill of Entry No. 1114 available in the case records bears the following endorsement:-
"Originally noted on 9-10-1986. Renoted vide A.C's order on 23-10-1986 in File No. 332-357/86 Imp"
It follows from the endorsement reproduced above, that originally the appellants had filed a bill of entry for warehousing in the prescribed form under Section 46(1) of the Customs Act, 1962 which reads as follows:-
"SECTION 46. Entry of goods on importation. - (1) The importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form:
Provided that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section the proper officer may, pending the production of such information permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under Section 57 without warehousing the same."
It appears that on the request of the appellants the Assistant Collector in exercise of the power under Section 46(5) permitted the substitution of the Bill of Entry for warehousing for a Bill of Entry for Home Consumption, which was noted on 23-10-1986. Thus in this case the goods will have to deemed as having been entered for home consumption only on 23-10-1986 and not on 9-10-1986 since on that date the Bill of Entry presented by the appellants under Section 46(1) was admitted for warehousing. For the determination of the rate of duty applicable to the disputed goods we refer to Section 15(1) of the Customs Act, 62 which is reproduced below:-
"SECTION 15. Date for determination of rate of duty and tariff valuation of imported goods. - (1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, -
(a) 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;
(b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse;
(c) in the case of any other goods, on the date of payment of duty.
Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards."
As observed by us earlier, the goods covered by Bill of Entry No. 1114 were entered for home consumption under Section 46(1) only on 23-10-1986 when the Bill of Entry for warehousing filed on 9-10-1986 was permitted to be substituted. Hence, in terms of Section 15(1)(a) the rate of duty applicable to the goods in question will be the rate in force on 23-10-1986.
12. We are of the view that the case of M/s. Sanjay Trades Concern v. Collector of Customs (Appeals) (supra) cited by the appellants does not help them since in that case the question before the Tribunal was whether in respect of goods entered for warehousing, Section 15(1)(b) would come into play when they are cleared against the same warehousing Bill of Entry without having been physically warehoused. In the case before us the facts are different inasmuch as the Bill of Entry for warehousing was substituted and the Home Consumption Bill of Entry was filed only on 23-10-1986 under Section 46(1) of the Customs Act, 1962.
13. In view of the above discussion we hold that the rates of duty leviable in terms of Notifications No. 439 & 440-Cus., dated 6-10-1986 were attracted on the goods imported against bill of entry No. I-1114 which was re-noted as home consumption bill of entry on 23-10-1986.
14. The appeals are disposed of in the above terms with consequential relief to the appellants.