Customs, Excise and Gold Tribunal - Delhi
Gujarat Communications And ... vs C.C. on 23 December, 1997
Equivalent citations: 1999(113)ELT987(TRI-DEL)
ORDER Lajja Ram, Member (T)
1. In this appeal filed by M/s. Gujarat Communications and Electronics Ltd. (a Government of Gujarat Enterprise), the short point for our consideration is, whether the amending Notification No. 262/92-Cus., dated 27-8-1992 will be applicable to the electronic components already imported and in respect of which the bill of entry had been filed on 27-7-1992. The Collector of Customs (Appeals), Bombay, after analysing the amendment made in the original Notification No. 162/90-Cus., dated 30-3-1990 held that the exemption with regard to the goods imported under bill of entry dated 27-7-1992 had to be determined with reference to the effective duty of customs as on the date of the bill of entry i.e. 27-7-1992.
2. The matter was fixed for hearing on 23-12-1997. The appellants have prayed for decision on merits. In their memo of appeal, they have submitted that the import licence was issued to them on 23-9-1992 and that the import licence was valid for the goods already arrived/shipped. They have further submitted that they had cleared the goods on 4-11-1992. On these grounds, they had pleaded that the benefit of amending Notification No. 262/92-Cus., dated 27-8-1992 should be available to the goods in question, although the relevant bill of entry was dated 27-7-1992.
3. We have heard Shri S.N. Ojha, JDR, and have gone through the facts on record.
4. Under Notification No. 162/90-Cus., dated 30-3-1990 raw-materials and components required for the manufacture of the goods specified in the table annexed to that notification were exempted from the payment of customs duty when imported into India by a manufacturer of the final products for supply to a 100% export oriented undertaking or an unit within a free trade zone. This exemption was subject to the various conditions named in the notification. This notification was amended from time to time and we are concerned with the amendment made by Notification No. 262/92-Cus., dated 27-8-1992. Under this amending Notification Serial No. 8 was inserted in the Table annexed to the original Notification No. 162/90-Cus. Serial No. 8 related to any other item as may be specified by a Public Notice issued in pursuance of sub-para (iii) of Para 56 of Export and Import Policy 1st April, 1992 - 31st March, 1997, published vide Public Notice of the Government of India in the Ministry of Commerce No. 1-ITC (PN) 92-97, dated the 31st March, 1992. The appellants have pleaded that the rate of customs duty with regard to the goods already imported and in respect of which the bill of entry had been filed on 27-7-1992, should be determined in the light of the amendment made on 27-8-1992. Their main argument is that the import licence dated 23-9-1992 was valid for the goods already arrived/shipped.
5. We find that for exemption from the payment of customs duty, the exemption notification in exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 had been issued. The import licence is with regard to the conditions under which the imports are allowed. The import licence is not an exemption notification. Exemption from the payment of customs duty had to be regulated in terms of the valid exemption notification as on the relevant date. For the purposes of the rate of customs duty, the relevant date is the date of the bill of entry. In this case, the bill of entry is dated 27-7-1992 and the rate of customs duty under the Customs Tariff read with any applicable exemption notification has to be determined as on that date. As the amending notification is dated 27-8-1992 and date of the bill of entry for the purposes of determining the rate of duty is 27-7-1992, we consider that the view taken by the Collector of Customs (Appeals) did not suffer from any infirmity.
6. The amending notification extended the area of exemption to new situations and to new goods. The amending notification was not of a procedural nature, but extended exemption in substantive areas. We, therefore, consider that no retrospective effect could be given to the amending Notification No. [262/92-Cus., dated] 27-8-1992.
7. In the case of Bombay Oil Indus. Pvt. Ltd. v. Union of India -1995 (77) E.L.T. 32 (S.C.), the Supreme Court had held that the amendment when not of a clarificatory nature will not have retrospective effect and that the goods imported/cleared prior to the issue of amending notification were not eligible for exemption provided in terms of the amending notification.
"10. Before parting we may note one submission of the learned Counsel. They submitted that laying down of condition No. 2 in notification dated 2-8-1976 was a clear error on the part of the Central Government which was corrected by them by the latter notification dated 2-9-1978 and, therefore, the latter notification be treated as clarificatory notification read with above Notification of 2-8-1976. It is not possible to agree as the disputed imports with which we are concerned are prior to 2-9-1978. They are therefore, covered by the earlier notification of 1976. It is true that the Tribunal by noting these submissions has observed in Paragraph 35 of the judgment that the colour specification was an error and the error be removed but for that reason it could not ignore the colour specification when it was the part of the law. We entirely agree with the view of the Tribunal that even if the Central Government corrected its error about condition No. 2 from 2-9-1978 by issuing a fresh notification, the earlier colour specification requirement remained operative for imports made by the concerned importers prior to 2-9-1989 when the earlier notification dated 2-8-1976 was holding the field. The latter notification can not be said to be merely clarificatory notification nor can it have any retrospective effect. It is a fresh notification laying down fresh condition deleting the earlier condition No. 2 about the colour specification. Hence this submission is of no avail to the learned Counsel for the appellants."
8. Taking all the relevant facts and circumstances into account, we do not find any merit in this appeal and the same is rejected.