Faqir Chand Vinod Kumar & Co Win Case on Time of Notification to Prevail over Date

·         Notification comes into Force only on the Date and Time of Issue, Consignment Cleared before Time of Issue will be Cleared under old Dispensation even though the Date of New Notification is the same as that of the old Notification

·         Benefit of Supreme Court Ruling in 2020 GS Chatha Rice Case on same Issue Extended to Appellant Faqir Chand

·         Levy of 30% Duty in New Notification Struck Down

CESTAT Mumbai Judgement on Faqir Chand Vinod Kumar & Co Versus Commissioner of Customs, Nhava Sheva

[FINAL ORDER NO. 85672/2023 dated 03.05.2023]

Order Passed by: Dr. Suvendu Kumar Pati, Member (Judicial) and Shri Sanjiv Srivastava, Member (Technical)

THE    ORDER

The appeal is allowed and the order passed by the Commissioner of Customs (Appeals), Mumbai-II vide Order-in-Appeal No. 858 (Gr.I & IA)/2021(JNCH)/Appeals dated 20.10.2021 is hereby set aside with consequential reliefs including refund of duty paid upon re-assessment with applicable interest, to be complied by the Respondent-Department within three months of receipt of this order.

 

Short issue involved in this appeal is the determination of effective date and time of implementation of Notification No. 93/2017-Cus. dated 21.12.2017 enhancing Customs duty to Rs.38,88,860/- on “Desi Chick Peas” with 30% rate of duty on bill of entry No. 4152457 dated 25.11.2017 that was assessed at ‘nil’ rate of duty available earlier vide exemption Notification No. 50/2017- Cus. dated 30.06.2017 before the enhancement being gazetted which was made applicable to Appellant post assessment of bill of entry, at the prevailing ‘nil’ rate of duty as well as out of charge order was passed.

Facts of the case, in a nutshell, is that Appellant-importer filed bill of Entry No. 4152457 dated 25.11.2017 for clearance of 239.02 MTs. of “Desi Chick Peas” imported from Singapore with a declare assessable value of Rs.1,25,85,308/- and claimed ‘nil’ rate of duty in terms of Notification No. 50/2017-Cus. referred above. Arrival of the vessel in the port was reported to be on 21.12.2017, on which date the bill of entry was assessed at ‘nil’ rate and out of charge order was issued at 4:51 p.m. On the same day, Government of India published Notification No. 93/2017-Cus. at 22.45 hours revising the rate of duty of the goods in question to 30% from ‘nil’ rate of duty granted under Notification No. 50/2017-Cus., in exercise of the power conferred on it under Section 25 of the Customs Act, 1962. Taking support of provision of Section 15(1)(b), Section 25(4) of the Customs Act, the bill of entry was re-assessed under Section 17(4) of the Customs Act and Appellant was asked to pay the duty at 30% of the assessable value by the Original Authority vide his order dated 28.11.2019 Appellant’s unsuccessful attempt before the Commissioner of Customs (Appeals), Mumbai-II has brought the dispute to this forum.

Undisputed facts, as admitted by the adversaries, are as follows:-

(a) Bill of entry was already assessed at nil rate of duty in the course of the day of arrival of the vessel in the port on 21.12.2017 and out of charged order had been granted to the Appellant at 4:41 P.M. on the same day.

(b) Notification No. 93/2017-Cus issued under Section 25 of the Customs Act, 1962 was gazetted at 22:45 hrs. on the same day i.e. on 21.12.2017.

(c)   Section 15 of the Customs Act, 1962 clause-I proviso is applicable in the case of Appellant and the same indicates that even if, in cases where bill of entry has been presented before the date of entry of vessel inward or arrival of aircraft or vehicle carrying imported goods, the bill of entry shall be deemed to have been presented on the date of such entry inwards.

(d) Appellant’s Counsel Mr. Anil Balani placed his reliance on the recent full Bench judgement of the Honble Supreme Court passed in the case of Union of India Vs. G. S Chatha Rice Mills reported in 2020 (374) ELT 289 (SC) to substance his stand and the same fact is noted by the Commissioner (Appeals) in his order, but decision did not go with the ratio of the judgment, as he had distinguished it and finally held it to be not applicable.

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<G. S Chatha Rice Mills Judgement>