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 Hon’ble 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.
**