C/11738/2017 — Bharat Foods Co Operative Ltd vs Kandla

Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench at Ahmedabad

REGIONAL BENCH-COURT NO. 3

CUSTOMS Appeal No. 11738 of 2017 - DB (Arising out of OIA-KDL-CUSTM-000-APP-028-030-17-18 dated 04/07/2017 passed by Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax- AHMEDABAD) Bharat Foods Co Operative Ltd ……..Appellant Plot No.186, Sector 4, Gandhidham Gujarat VERSUS

C.C.-Kandla ……Respondent Custom House, Near Balaji Temple, Kandla, Gujarat

With

CUSTOMS Appeal No. 11739 of 2017 - DB (Arising out of OIA-KDL-CUSTM-000-APP-028-030-17-18 dated 04/07/2017 passed by Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax- AHMEDABAD) Bharat Foods Co Operative Ltd ……..Appellant Plot No.186, Sector 4, Gandhidham Gujarat VERSUS

C.C.-Kandla ……Respondent Custom House, Near Balaji Temple, Kandla, Gujarat

APPEARANCE: Shri Vikas Mehta, Consultant for the Appellant
Shri Ajay Kumar Samota, Superintendent (AR) for the Respondent
CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU

          Final Order No. 10252-10253/2024  
                                                          DATE OF HEARING: 21.12.2023 
                                                           DATE OF DECISION: 29.01.2024   

RAMESH NAIR
The issue involved in the present case is that whether the Notification No. 46/2015-Cus dated 17.09.2015 is effective from the date of notification i.e. 17.09.2015 or the date when it was offered for sale i.e. 21.09.2015.

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Shri Vikas Mehta, Learned Consultant appearing on behalf of the appellant submits that the department’s contention is that the Notification is effective on the date of publication thereof in the official gazette. In the present case, the Notification was issued on 17.09.2015, therefore, as per the department, this date is effective date of the Notification.

2.1 He submits that during the relevant period un-amended sub-section 4 of section 25 of the Customs Act provides that the effect of the Notification will come into force not only by publishing the notification in the official gazette but also when the notification is offered for sale on the date of issue by the director of publicity and public relations of the board, New Delhi.

2.2 He submits that on the information obtained under RTI, it is undisputed that the notification was offered for sale only on 21.09.2015. Therefore, in terms of Section 25(4)(b) the effective date of Notification is 21.09.2015 and relevant date for payment of duty is 18.09.2015, when entry inward was allowed. Accordingly, on the date of duty payable the notification was not in force. Hence, the increase of 5% duty is not applicable on the clearance under bills of entry dated 12.09.2015 & 17.09.2015.

2.3 He submits that this issue has been considered in the appellant’s own case by this Tribunal, and in the case of Ruchi Soya Industries Ltd Vs. Commissioner of Customs Kandla 2020 (373) ELT 113 (Tri.-Ahm.). He submits that this Tribunal in the said judgment has considered various High Court’s and Supreme Court’s judgments and also Ministry of Finance clarification under office memorandum No. 336/4/2003-TRU dated 09.10.2003. Accordingly, in view of the judgment in the appellant’s own

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case, in the present case also, the effective date of Notification has to be taken as 21.09.2015 and not 17.09.2015.

Shri Ajay Kumar Samota, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.

We have carefully considered the submission made by both the sides and perused the records. We find that there is no dispute in the fact that though the Notification No. 46/2015-CUS was issued on 17.09.2015 but the same was offered for sale on 21.09.2015. In this regard, we scanned below the relevant RTI information:

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4.1 From the above letter dated 12th October, 2015 given by CPIO, it is clear that the Notification No. 46/2015-CUS was put on sale to the general public on 21.09.2015. The relevant provision regarding issuance of notification is provided under Section 25 (4) which is reproduced below:
"Section 25
(4) Every notification issued under sub-section (1) [or sub-section (2A)] shall, - (a) Unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;
(b) also 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” 4.2 Considering the above legal provision, this Tribunal has taken a view that the notification shall come into effect only when the notification is offered for sale. Therefore, considering the said judgment, in the present case since notification was offered for sale on 21.09.2015 i.e. a date when the Notification No. 46/2015-Cus came into force. The decision in the appellant’s own case cited above is directly applicable in the facts of the present case. The relevant order portion is reproduced below:
“4. We heard both the sides and perused the records. The issue to be decided is whether the Notification No. 120/2003, dated 1-8-2003 is effective from the date of publication i.e. 1-8-2003 as proposed by the revenue or from the date of offer for sale of the said notification i.e. 4-8-2003 as claimed by the appellant. In this regard, relevant Section 25(4)(a)(b) is reproduced below, which is prevalent at the relevant time :- "Section 25
(4) Every notification issued under sub-section (1) [or sub-section (2A)] shall, - (a) Unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;
(b) also 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”

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4.1 From the above section, particularly from clause (b) it is clear that the notification shall come into force when the notification is issued, published in the Official Gazette and also offered for sale. Therefore, all the three event are necessary i.e. notification should be issued, published in the Official Gazette of Central Government and offered for sale, that means the date on which the notification is offered for sale shall be the relevant effective date of notification, even though, the date of issue of notification and publication is prior to the date of offer for sale. As regard the factual position, on the above dates the appellant have obtained a reply under RTI which is reproduced below :- GOVERNMENT OF INDIA DEPARTMENT OF PUBLICATIO CIVIL LINES, DELHI 110054 Website : www.deptpub.gov.in Email : acop-dep@nic.in (&) pub.dep@nic.in TEL. : 23817823, 23819689 Fax : 23817846 File No. O&M/19104/2015 Dated : 7th August, 2015 To, Shri Pawan Awasthi LIG-171,
2nd Floor Rose Apartment,
Sec-18-B Dwarka,
New Delhi 110078 Sub : Information under RTI Act, 2005 Ref : Your letters dated 9-7-2015 and 4-8-2015 received in this Department on 10-7- 2015, 6-8-2015 respectively Sir With reference to the above, it is informed that the copies of Gazette of India, no. GSR 622(E), Serial No. 365 and bearing GI No. 2195, dated 1-8-2003 (Friday) were received on 1-8-2003 at 12:00 midnight at Kitab Mahal Sale Counter of this Department from Govt., of India Press, Mayapuri, Ring Road, New Delhi vide Delivery Challan No. 57721, dated 1- 8-2003 and put on sale to the general public at 9:30 AM on 4-8-2003 (Monday). If you are not satisfied with the reply, you may appeal to the First Appellate Authority/Controller of Publications, Department of Publication, Civil Lines, Delhi 54 within stipulated time limit. Yours faithfully, Sd/- (G.D. Pandey) Central Public Information Officer

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4.2 From the above reply the date on which the notification was put on sale to general public is 4-8-2003. To ascertain whether this reply is relevant to the Notification No. 120/2003-Cus., dated 1-8-2003 the gazetted notification is reproduced below :-

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4.3 From the perusal of the above Gazetted Notification it is clear that the reply is in respect of Notification No. 120/2003-Cus., dated 1-8-2003, GSR 622(E), Serial No. 365 and bearing GI No. 2195, dated 1-8-2003. With the above documents it is clear that the Notification No. 120/2003-Cus., though issued on 1-8-2003 and published on 1-8-2003 but offered for sale only on 4-8-2003. Therefore, the same came into effect on 4-8-2003, whereas the Bills of Entry were filed on 1-8-2003 therefore, the benefit of unamended Notification No. 21/2002-Cus., dated 1st March, 2002 was available to the appellant. The Adjudicating Authority as well as the First Appellate Authority have decided the matter solely on the basis of Hon’ble Supreme Court judgment in the case of Ganesh Das Bhojraj (supra).
5. On careful reading of the said judgment, we find that the said judgment is not in reference of amended Section 25(4)(a)(b) of Customs Act, 1962. We observe that despite pointing out this legal position to both the Lower Authorities they have brushed aside even the judgment of Karnataka High Court in the case of M/s. Param Industries Ltd. which has considered the judgment of Ganesh Das Bhojraj, therefore, both the Lower Authorities have not followed the judicial discipline. The decision of Karnataka High Court was subsequently upheld by the Hon’ble Supreme Court as cited (supra). On the identical issue the jurisdictional Gujarat High Court in the case of M/s. M.D. Overseas Ltd. also taken the same view as was taken by the Karnataka High Court and Supreme Court in the case of M/s. Param Industries Ltd. This judgment of M/s. M.D. Overseas Ltd. was also upheld by the Hon’ble Supreme Court.

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6. In view of the above discussed facts coupled with the settled legal position in the judgment of M/s. Param Industries Ltd. (supra) and M/s. M.D. Overseas Ltd. (supra), the impugned order is not sustainable hence, the same is set aside, appeal is allowed.”

4.3 In view of the above observation and the case law in the appellant’s own case on the identical issue and law point, in the present case the notification is effective from 21.09.2015 therefore, the appellant are not required to pay 5% increase in duty. Accordingly, the appellant are eligible for re-assessment of bills of entry on the basis of un-amendment Notification No. 46/2015-CUS at the rate of 7.5% duty.

Accordingly, the impugned order is set aside and appeals are allowed with consequential relief.
(Pronounced in the open court on 29.01.2024)

(RAMESH NAIR) MEMBER (JUDICIAL)

(RAJU) MEMBER (TECHNICAL) Raksha