Section 375 IPC = whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. ?

 Section 375 IPC = whether   the prosecutrix   consented   to   the   physical   relationship   under   any misconception of fact with regard to the promise of marriage by the   appellant   or   was   her   consent   based   on   a   fraudulent misrepresentation   of   marriage   which   the   appellant   never intended to keep since the very inception of the relationship.  ?

If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out.  It is not possible to hold   in   the   nature   of   evidence   on   record   that   the   appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law.  In the facts of the present case 10 we are not persuaded to accept the solitary statement of the prosecutrix   that   at   the   time   of   the   first   alleged   offence   her consent was obtained under fear of injury.   

Under   Section   90   IPC,   a   consent   given   under   a misconception of fact is no consent in the eyes of law.  But the misconception   of   fact   has   to   be   in   proximity   of   time   to   the occurrence and cannot be spread over a period of four years.  It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her. 

We have no hesitation in concluding that the consent of the prosecutrix   was   but   a   conscious   and   deliberated   choice,   as distinct   from   an   involuntary   action   or   denial   and   which opportunity was available to her, because of her deep­seated love for the appellant leading her to willingly permit him liberties with her   body,   which   according   to   normal   human   behaviour   are permitted only to a person with whom one is deeply in love.  The observations   in   this   regard   in  Uday (supra)   are   considered relevant: “25…It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances   the   promise   loses   all   significance, particularly when they are overcome with emotions and passion   and   find   themselves   in   situations   and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship.  This is what appears to have happened in this case as well, and the   prosecutrix   willingly   consented   to   having   sexual intercourse with the appellant with whom she was deeply in   love,   not   because   he   promised   to   marry   her,   but because she also desired it.   In these circumstances it would   be   very   difficult   to   impute   to   the   appellant knowledge   that   the   prosecutrix   had   consented   in consequence of a misconception of fact arising from his promise.   In   any   event,   it   was   not   possible   for   the appellant   to   know   what   was   in   the   mind   of   the prosecutrix   when   she   consented,   because   there   were more reasons than one for her to consent.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  635  OF  2020

(Arising out of SLP (Crl.) No.393 of 2020)

MAHESHWAR TIGGA ...APPELLANT(S)

VERSUS

THE STATE OF JHARKHAND      ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

Leave granted.

2. The appellant assails his conviction under sections 376, 323

and 341 of the Indian Penal Code (in short, “IPC”) sentencing him

to seven years, one year and one month respectively with fine and

a default stipulation.  

3. The   prosecutrix,   PW9   lodged   FIR   No.   25   of   1999   on

13.04.1999   alleging   that   four   years   ago   the   appellant   had

1

outraged her modesty at the point of a knife.  He had since been

promising   to   marry   her   and   on   that   pretext   continued   to

establish physical relations with her as husband and wife.  She

had also stayed at his house for fifteen days during which also he

established physical relations with her. Five days prior to the

lodging   of   the   F.I.R,   the   appellant   had   established   physical

relations with her on 09.04.1999.  The appellant had cheated her

as now he was going to solemnise his marriage with another girl

on 20.04.1999. All efforts at a compromise had failed. 

4. The   Additional   Judicial   Commissioner,   Ranchi   on

consideration of the evidence convicted the appellant holding that

the prosecutrix was 14 years of age when the appellant had first

committed rape upon her at the point of a knife.   He did not

abide by his promise to marry her.  The High Court dismissing

the appeal opined that the letters written by the appellant to the

prosecutrix, their photographs together, and the statement of the

appellant recorded under Section 313 Cr.P.C. were sufficient to

sustain the conviction. 

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5. Learned senior counsel, Mrs. V. Mohana on behalf of the

appellant, submits that the F.I.R lodged belatedly after four years

was clearly an afterthought.  The entire genesis of the allegations

is highly doubtful and suspect as the prosecutrix in her crossexamination admitted that the appellant had not committed rape

with her on 09.04.1999.  The letters written by the appellant to

the prosecutrix as also those written by her to the appellant

marked   as   Exhibits   during   trial,   more   than   sufficiently

established a deep love affair between them over a period of time.

The prosecutrix was aged approximately 25 years as opined by

P.W.10, the Doctor who medically examined her on 14.04.1999.

The physical relations between the appellant and the prosecutrix

were consensual in nature occasioned by their love affair.   No

offence   under   Section   375   IPC   is   therefore,   made   out.     The

questions put to the appellant under Section 313 Cr.P.C. were

very   casual   and   perfunctory,   leading   to   denial   of   proper

opportunity of defence causing serious prejudice to him by denial

of the right to a fair trial.  The marriage between them could not

materialise due to societal reasons as the appellant belonged to

the   Scheduled   Tribe,   while   the   prosecutrix   was   a   Christian.

Reliance was placed on Parkash Chand vs. State of Himachal

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Pradesh,  (2019)   5   SCC   628,  Vijayan   vs.   State   of   Kerala,

(2008) 4 SCC 763,  Kaini Rajan vs. State of Kerala,  (2013) 9

SCC 113, Deepak Gulati vs. State of Haryana,  (2013) 7 SCC

675 and Uday vs. State of Karnataka, (2003) 4 SCC 46.

6. Ms. Pragya Baghel, learned counsel for the State, submitted

that the prosecutrix stood by the allegations during trial.   The

delay in lodging the FIR has been sufficiently explained by reason

of the compromise efforts which failed to materialise.     P.W. 7,

the sister of the prosecutrix had also confirmed that the latter

was sexually assaulted by the appellant at the point of a knife

and   had   come   home   crying.     The   appellant   had   told   the

prosecutrix   to   keep   quiet   in   his   absence,   revealing   that   his

intentions   were   not   bonafide.   The   defence   of   a   consensual

relationship is irrelevant considering that the prosecutrix was

fourteen years of age.  The appellant had held out a false promise

of   marriage   only   to   establish   physical   relations   with   the

prosecutrix.   He never had any such intentions from the very

inception, and he obtained the consent of the appellant by a false

misrepresentation, which is no consent in the eyes of the law.

The evidence of the prosecutrix is reliable. 

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7. We   have   considered   the   submissions   on   behalf   of   the

parties. The prosecutrix in her deposition dithered with regard to

her age by first stating she was sixteen years on the date of

occurrence and then corrected herself to state she was thirteen.

Though she alleged that the appellant outraged her modesty at

the point of a knife while she was on way to school, no name of

the school has been disclosed either by the prosecutrix or her

parents P.W.5 and  6. If the prosecutrix was studying in a school

there is no explanation why proof of age was not furnished on

basis   of   documentary   evidence   such   as   school   register   etc.

P.W.10, in cross examination assessed the age of the prosecutrix

to be approximately twenty­five years. P.W.2, the cousin (brother)

of the prosecutrix aged about 30 years deposed that she was six

years   younger   to   him.     There   is   thus   wide   variation   in   the

evidence with regard to the age of the prosecutrix. The Additional

Judicial Commissioner held the prosecutrix to be fourteen years

of   age   applying   the   rule   of   the   thumb   on   basis   of   the   age

disclosed by her in deposition on 18.08.2001 as 20 years.   In

absence of positive evidence being led by the prosecution with

regard to the age of the prosecutrix on the date of occurrence, the

possibility of her being above the age of eighteen years on the

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date cannot be ruled out. The benefit of doubt therefore has to be

given to the appellant.

8. A bare perusal of the examination of the accused under

Section   313   Cr.P.C.   reveals   it   to   be   extremely   casual   and

perfunctory in nature. Three capsuled questions only were asked

to the appellant as follows which he denied:­ 

“Question1. There is a witness against you that when the

informant V. Anshumala Tigga was going to school you

were   hiding   near   Tomra   canal   and   after   finding   the

informant in isolation you forced her to strip naked on

knifepoint and raped her.

Question 2. After the rape when the informant ran to her

home crying to inform her parents about the incident and

when the parents of the informant came to you to inquire

about   the   incident,   you   told   them   that   “if   I   have

committed rape then I will keep her as my wife”.

Question3. On your instruction, the informant’s parents

performed the “Lota Paani” ceremony of the informant, in

which   the   informant   as   well   as   your   parents   were

present,   also   in   the   said   ceremony   your   parents   had

gifted   the   informant   a   Saree   and   a   blouse   and   the

informant’s parents had also gifted you some clothes”

9. It   stands   well   settled   that   circumstances   not   put   to   an

accused under Section 313 Cr.P.C. cannot be used against him,

and must be excluded from consideration.  In a criminal trial, the

importance of the questions put to an accused are basic to the

6

principles of natural justice as it provides him the opportunity

not   only   to   furnish   his   defence,   but   also   to   explain   the

incriminating   circumstances   against   him.   A   probable   defence

raised by an accused is sufficient to rebut the accusation without

the requirement of proof beyond reasonable doubt. This Court,

time and again, has emphasised the importance of putting all

relevant questions to an accused under Section 313 Cr.P.C. In

Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it

was held to an essential part of a fair trial observing as follows :­

“5……The questioning of the accused under Section 313

CrPC   was   done   in   the   most   unsatisfactory   manner.

Under Section 313 CrPC the accused should have been

given opportunity to explain any of the circumstances

appearing   in   the   evidence   against   him.   At   least,   the

various items of evidence, which had been produced by

the prosecution, should have been put to the accused in

the form of questions and he should have been given

opportunity to give his explanation. No such opportunity

was   given   to   the   accused   in   the   instant   case.   We

deprecate   the   practice   of   putting   the   entire   evidence

against the accused put together in a single question and

giving an opportunity to explain the same, as the accused

may not be in a position to give a rational and intelligent

explanation. The trial Judge should have kept in mind

the importance of giving an opportunity to the accused to

explain the adverse circumstances in the evidence and

the Section 313 examination shall not be carried out as

an empty formality. It is only after the entire evidence is

unfurled the accused would be in a position to articulate

his defence and to give explanation to the circumstances

appearing in evidence against him. Such an opportunity

being given to the accused is part of a fair trial and if it is

7

done in a slipshod manner, it may result in imperfect

appreciation of evidence…”

10. The appellant belonged to the Scheduled Tribe while the

prosecutrix belonged to the Christian community. They professed

different   religious   beliefs   in   a   traditional   society.     They   both

resided in the same village Basjadi and were known to each

other.  The nature and manner of allegations, coupled with the

letters exchanged between them, marked as Exhibits during the

trial, make it apparent that their love for each other grew and

matured over a sufficient period of time.  They were both smitten

by each other and passions of youth ruled over their minds and

emotions.  The physical relations that followed was not isolated

or   sporadic   in   nature,   but   regular   over   the   years.     The

prosecutrix   had   even   gone   and   resided   in   the   house   of   the

appellant.  In our opinion, the delay of four years in lodgement of

the FIR, at an opportune time of seven days prior to the appellant

solemnising his marriage with another girl, on the pretext of a

promise to the prosecutrix raises serious doubts about the truth

and veracity of the allegations levelled by the prosecutrix.   The

entire genesis of the case is in serious doubt in view of the

admission   of   the   prosecutrix   in   cross   examination   that   no

incident had occurred on 09.04.1999. 

8

11.  The   parents   of   the   prosecutrix,   P.Ws.   5   and   6   both

acknowledged awareness of the relationship between appellant

and the prosecutrix and that they were informed after the first

occurrence itself but offer no explanation why they did not report

the matter to the police immediately.   On the contrary, P.W. 5

acknowledges   that   the   appellant   insisted   on   marrying   in   the

Temple   to   which   they   were   not   agreeable   and   wanted   the

marriage   to   be   solemnised   in   the   Church.     They   further

acknowledged that the appellant and the prosecutrix were in love

with each other.  Contrary to the claim of the prosecutrix, P.W. 6

stated that the prosecutrix was sexually assaulted in her own

house. 

12. The   prosecutrix   acknowledged   that   an   engagement

ceremony had also been performed.  She further deposed that the

marriage between them could not be solemnised because they

belonged to different religions.   She was therefore conscious of

this obstacle all along, even while she continued to establish

physical   relations   with   the   appellant.     If   the   appellant   had

married her, she would not have lodged the case.   She denied

9

having   written   any   letters   to   the   appellant,   contrary   to   the

evidence placed on record by the defence. The amorous language

used by both in the letters exchanged reflect that the appellant

was   serious   about   the   relationship   desiring   to   culminate   the

same into marriage.  But unfortunately for societal reasons, the

marriage   could   not   materialise   as   they   belonged   to   different

communities.

13. The   question   for   our   consideration   is   whether   the

prosecutrix   consented   to   the   physical   relationship   under   any

misconception of fact with regard to the promise of marriage by

the   appellant   or   was   her   consent   based   on   a   fraudulent

misrepresentation   of   marriage   which   the   appellant   never

intended to keep since the very inception of the relationship.  If

we reach the conclusion that he intentionally made a fraudulent

misrepresentation from the very inception and the prosecutrix

gave her consent on a misconception of fact, the offence of rape

under Section 375 IPC is clearly made out.  It is not possible to

hold   in   the   nature   of   evidence   on   record   that   the   appellant

obtained her consent at the inception by putting her under any

fear. Under Section 90 IPC a consent given under fear of injury is

not a consent in the eyes of law.  In the facts of the present case

10

we are not persuaded to accept the solitary statement of the

prosecutrix   that   at   the   time   of   the   first   alleged   offence   her

consent was obtained under fear of injury.  

14.  Under   Section   90   IPC,   a   consent   given   under   a

misconception of fact is no consent in the eyes of law.  But the

misconception   of   fact   has   to   be   in   proximity   of   time   to   the

occurrence and cannot be spread over a period of four years.  It

hardly needs any elaboration that the consent by the appellant

was a conscious and informed choice made by her after due

deliberation, it being spread over a long period of time coupled

with a conscious positive action not to protest. The prosecutrix in

her letters to the appellant also mentions that there would often

be quarrels at her home with her family members with regard to

the relationship, and beatings given to her.  

15. In Uday  (supra), the appellant and the prosecutrix resided

in the same neighbourhood.  As they belonged to different castes,

a matrimonial relationship could not fructify even while physical

relations   continued   between   them   on   the   understanding   and

assurance of marriage.  This Court observed as follows:

11

“21.   It   therefore   appears   that   the   consensus   of

judicial opinion is in favour of the view that the

consent   given   by   the   prosecutrix   to   sexual

intercourse with a person with whom she is deeply

in love on a promise that he would marry her on a

later   date,   cannot   be   said   to   be   given   under   a

misconception of fact. A false promise is not a fact

within the meaning of the Code.  We are inclined to

agree with this view, but we must add that there is

no   straitjacket   formula   for   determining   whether

consent   given   by   the   prosecutrix   to   sexual

intercourse   is   voluntary,   or   whether   it   is   given

under   a   misconception   of   fact.     In   the   ultimate

analysis, the tests laid down by the courts provide

at   best   guidance   to   the   judicial   mind   while

considering   a   question   of   consent,  but  the   court

must, in each case, consider the evidence before it

and the surrounding circumstances, before reaching

a   conclusion,   because   each   case   has   its   own

peculiar   facts   which   may   have   a   bearing   on   the

question whether the consent was voluntary, or was

given under a misconception of fact.   It must also

weigh the evidence keeping in view the fact that the

burden  is  on   the  prosecution   to   prove  each   and

every ingredient of the offence, absence of consent

being one of them.”  

16. The appellant, before the High Court, relied upon  Kaini

Rajan (supra) in his defence.  The facts were akin to the present

case.   The   physical   relationship   between   the   parties   was

established on the foundation of a promise to marry.  This Court

set aside the conviction under Section 376 IPC also noticing K.P.

Thimmappa   Gowda   vs.   State   of   Karnataka, (2011)14 SCC

475.   Unfortunately, the High Court did not even consider it

12

necessary to deal with the same much less distinguish it, if it was

possible.     It   is   indeed   unfortunate   that   despite   a   judicial

precedent of a superior court having been cited, the High Court

after mere recitation of the facts and the respective arguments,

cryptically in one paragraph opined that in the nature of the

evidence, the letters, the photograph of the appellant with the

prosecutrix and the statement of the appellant under Section 313

Cr.P.C., his conviction and sentence required no interference. 

17. This court recently in  Dhruvaram  Murlidhar   Sonar   vs.

The State of Maharashtra and Others, AIR 2019 SC 327 and

in Pramod Suryabhan Pawar vs. State of Maharashtra and

another, (2019) 9 SCC 608 arising out of an application under

Section   482   Cr.P.C.   in   similar   circumstances   where   the

relationship originated in a love affair, developed over a period of

time accompanied by physical relations, consensual in nature,

but the marriage could not fructify because the parties belonged

to different castes and communities, quashed the proceedings.

18. We have given our thoughtful consideration to the facts and

circumstances  of  the   present  case and   are  of  the  considered

opinion that the appellant did not make any false promise or

13

intentional   misrepresentation   of   marriage   leading   to

establishment of physical relationship between the parties.  The

prosecutrix   was   herself   aware   of   the   obstacles   in   their

relationship   because   of   different   religious   beliefs.       An

engagement ceremony was also held in the solemn belief that the

societal   obstacles   would   be   overcome,   but   unfortunately

differences also arose whether the marriage was to solemnised in

the Church or in a Temple and ultimately failed. It is not possible

to hold on the evidence available that the appellant right from the

inception did not intend to marry the prosecutrix ever and had

fraudulently misrepresented only in order to establish physical

relation with her.   The prosecutrix in her letters acknowledged

that the appellant’s family was always very nice to her. 

19. The   appellant   has   been   acquitted   of   the   charge   under

Sections   420   and   504   I.P.C.     No   appeal   has   been   preferred

against the acquittal.  There is no medical evidence on record to

sustain the conviction under Section 323 I.P.C.   No offence is

made   out   against   the   appellant   under   Section   341   I.P.C.

considering the statement of prosecutrix that she had gone to live

with the appellant for 15 days of her own volition. 

14

20. We have no hesitation in concluding that the consent of the

prosecutrix   was   but   a   conscious   and   deliberated   choice,   as

distinct   from   an   involuntary   action   or   denial   and   which

opportunity was available to her, because of her deep­seated love

for the appellant leading her to willingly permit him liberties with

her   body,   which   according   to   normal   human   behaviour   are

permitted only to a person with whom one is deeply in love.  The

observations   in   this   regard   in  Uday (supra)   are   considered

relevant:

“25…It usually happens in such cases, when two young

persons are madly in love, that they promise to each

other several times that come what may, they will get

married. As stated by the prosecutrix the appellant also

made such a promise on more than one occasion. In such

circumstances   the   promise   loses   all   significance,

particularly when they are overcome with emotions and

passion   and   find   themselves   in   situations   and

circumstances where they, in a weak moment, succumb

to the temptation of having sexual relationship.  This is

what appears to have happened in this case as well, and

the   prosecutrix   willingly   consented   to   having   sexual

intercourse with the appellant with whom she was deeply

in   love,   not   because   he   promised   to   marry   her,   but

because she also desired it.   In these circumstances it

would   be   very   difficult   to   impute   to   the   appellant

knowledge   that   the   prosecutrix   had   consented   in

consequence of a misconception of fact arising from his

promise.   In   any   event,   it   was   not   possible   for   the

appellant   to   know   what   was   in   the   mind   of   the

prosecutrix   when   she   consented,   because   there   were

more reasons than one for her to consent.”

15

21. In conclusion, we find the conviction of the appellant to be

unsustainable   and   set   aside   the   same.     The   appellant   is

acquitted.   He is directed to be set at liberty forthwith unless

wanted in any other case.  The appeal is allowed.

…………...................J.

[R.F. NARIMAN]

…………...................J.

[NAVIN SINHA]

…………...................J.

[INDIRA BANERJEE]

NEW DELHI

SEPTEMBER 28, 2020

16

whether the the petitioner’s brother is very influential with the local judiciary ?

whether the  the petitioner’s brother is very influential with the local judiciary ?

how the pictures taken on the occasion of a cricket tournament conducted by a Bar Association and witnessed by a few judicial officers can be an indication of the influence exerted by the petitioner’s family on the entire district judiciary, merely because the judicial officers and Advocates have stood shoulder to shoulder on that occasion. It was not a private event but an event open to all lawyers of the District Bar. The fact that the petitioner’s brother who is  a lawyer, has a Facebook page and that the same has lot of followers and that it attracts a lot of comments and likes cannot be the basis to conclude that the petitioner’s brother is very influential with the local judiciary. 

1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO.455 OF 2020

NEETU YADAV        ...PETITIONER(S) 

Versus

SACHIN YADAV     …RESPONDENT(S)

O R D E R

1. The wife has come up with the above petition seeking

transfer   of   a   divorce   petition   bearing   H.M.A.   No.3200   of

2019 titled as “Sachin Yadav Vs. Neetu Yadav” filed by the

respondent­husband   on   the   file   of   the   Principal   Judge,

Family Court, South West, Dwarka Courts, New Delhi, to the

Court of the Principal Judge, Family Court, Indore, Madhya

Pradesh.

2. Heard learned counsel on both sides.

2

3. The marriage of the petitioner with the respondent was

solemnized on 21.02.2008 at Indore, Madhya Pradesh. Two

children, a girl and a boy, were born in the wedlock. While

the girl is now aged about 11 years, the boy is aged about 8

years.

4. Admittedly, the respondent­husband filed a petition for

dissolution of marriage on the ground of cruelty in H.M.A

case No.3200 of 2019 on the file of the Principal Judge,

Family Court, South West, Dwarka Courts, New Delhi. The

wife seeks transfer of the said petition to the Court of the

Principal   Judge,   Family   Court,   Indore,   Madhya   Pradesh

primarily on the ground that she and her two children are

entirely dependent on her old and ailing parents and that it

would be impossible for her to travel a distance of 800 kms.

to attend to the hearing of the case in New Delhi.

5. The respondent has filed a counter affidavit contending

inter alia  that the petitioner is a Post Graduate; that the

entire family of the petitioner is “influentially associated with

the   judicial   structure   of   Madhya   Pradesh”;   that   the

3

petitioner’s   mother   retired   from   a   senior   Administrative

position   from   the   District   judiciary;   that   the   petitioner's

mother   has   very   good   family   relations   with   the   judicial

officers   who   worked   in   the   district;   that   the   petitioner's

mother is still closely associated with the “Unionised Cadre

of District Court and their Cooperative Societies”; that several

officials of the Indore Court used to visit her home for each

and every small function in their family; that due to the

managerial skill of the petitioner's mother and her influence,

the petitioner managed to have the first notice in the divorce

petition returned unserved; that the petitioner’s brother is a

distinguished lawyer practising in the High Court of Madhya

Pradesh and the Subordinate Courts for more than twelve

years; that the petitioner’s brother has friendly relationship

with the judicial officers of the District Court, as can be

evident from his Facebook page; that the petitioner’s brother

is an associate of one Mr. Sunil Choudhary who was the

President of the District Bar Association, Indore: that he is

politically   well   connected   and   has   connection   with   the

4

sitting member of the Parliament who was also a Judicial

Officer (retired); that the petitioner’s brother is an active

member of the Indore Bar Association and is a close friend

of many leaders of the Bar; that the petitioner’s younger

brother   is   working   in   the   Information   Technology

Department,  Indore  Bench  of  the High  Court  of Madhya

Pradesh   and   that,   therefore,   it   is   not   possible   for   the

respondent to get justice through free and fair hearing. The

respondent­husband   has   stated   that   the   petitioner   is

capable   of   travelling   alone   to   Delhi   and   that   he   is   also

prepared to bear the expenses of her travel.

6. I have carefully considered the rival submissions.

7. It is not the case of the respondent that the petitioner

is gainfully employed. The claim of the petitioner that she is

now   staying   with   her   parents   is   not   disputed   by   the

respondent.   That   both   the   children   are   staying   with   the

petitioner is also not disputed. The elder child is a girl aged

about 11 years and whenever the case is fixed for hearing,

the petitioner has to travel about 800 kms.

5

8. The respondent is working as Vigilance Officer in the

Airport Authority of India. He is currently posted in Delhi.

The fact that the marriage was solemnized at Indore is borne

out by the pleadings in the Divorce Petition filed by the

respondent. As per the averments contained in the Divorce

Petition, the couple lived at Indore till July­2020.  Thereafter

the couple lived in Delhi for some time.

9. The only reason why the respondent has chosen to file

the Divorce Petition at Dwarka is that he is now posted in

New Delhi and that the couple last resided together at New

Delhi.

10. Keeping the above mentioned admitted facts in mind, if

we look at the counter affidavit filed by the respondent, it is

seen that the request for transfer is contested mainly on the

ground that the petitioner's  mother is a retired employee of

the District Court and that the petitioner's elder brother is a

practicing advocate and the younger brother is working in

the   I.T.   department   of   the   Indore   Bench   of   the   Madhya

Pradesh High Court and that they wield enormous influence.

6

11. To prove his contention regarding the status of the

petitioner’s family and the influence that they allegedly have,

the respondent has filed print outs of a few pages from the

Facebook account of the petitioner’s brother. While one of

those print outs has photographs taken on the occasion of a

cricket   tournament   held   under   the   aegis   of   Indore   Bar

Association and another print out relates to the greetings

extended to the Ex­President of Indore Bar Association, the

print outs of all other Facebook pages contain nothing other

than   the   photographs   of   the   petitioner’s   brother   with

comments revolving around some joyous occasions.

12. I do not know how the pictures taken on the occasion

of a cricket tournament conducted by a Bar Association and

witnessed by a few judicial officers can be an indication of

the influence exerted by the petitioner’s family on the entire

district judiciary, merely because the judicial officers and

Advocates have stood shoulder to shoulder on that occasion.

It was not a private event but an event open to all lawyers of

the District Bar. The fact that the petitioner’s brother who is

7

a lawyer, has a Facebook page and that the same has lot of

followers and that it attracts a lot of comments and likes

cannot be the basis to conclude that the petitioner’s brother

is very influential with the local judiciary. 

13. I am not convinced that there is any real likelihood of

bias.  Out of the seven print outs of the Facebook pages of

the petitioner's brother, filed by respondent as Annexures

R/1, R/2 and R/3 (colly), only one contains the photographs

of   a   few   persons   who   had   participated   in   the   cricket

competition conducted by Indore Bar Association. On the

basis of this, it is not appropriate to come to the conclusion

that the respondent will not receive a fair treatment at the

hands of the Family Court. 

14. Therefore, I deem it fit and proper to allow the transfer

petition. Accordingly, the Divorce Petition H.M.A. No.3200 of

2019 titled as “Sachin Yadav Vs. Neetu Yadav”, pending

before   the   Principal   Judge,   Family   Court,   South   West,

Dwarka Courts, New Delhi is transferred to the Court of the

Principal Judge, Family Court, Indore, Madhya Pradesh.

8

15. Let   the   records   of   the   case   be   transferred   to   the

concerned court, without delay.

16. The Transfer Petition is, accordingly, allowed.

…..………...................J.

(V. Ramasubramanian)

NEW DELHI

SEPTEMBER 30,  2020

Notification under Section 8A of the Customs Tariff Act 1975 - introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. - Whether is prospective or retrospective and tax is reassessable ?

Notification under Section 8A of the Customs Tariff Act 1975 -  introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. - Whether is prospective or retrospective and tax is reassessable ?

The High Court held that since the importers, who had imported goods from 7 PART A Pakistan, had presented their bills of entry and completed the process of “selfassessment” before the notification enhancing the rate of duty to 200 per cent was issued and uploaded, the enhanced rate of duty was not attracted. The High Court held that the importers were liable to pay the duty applicable at the time when the bills of entry for home consumption were filed under Section 46 of the 8 PART B Customs Act, 1962.1 The Union of India was ordered to release the goods within seven days on the payment of duty ‘as declared and assessed’ without applying the notification enhancing the rate of duty on goods originating in Pakistan.

Apex court held thatThe rate of duty which was applicable was crystallized at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 read with Regulation 4(2) of the Regulations of 2018. The power of reassessment under Section 17(4) could not have been exercised since this is not a case where there was an incorrect self-assessment of duty. The duty was correctly assessed at the time of self-assessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the notification bearing 5/2019 did not furnish a valid basis for re-assessment. 68 For the above reasons, we have come to the conclusion that there is no merit in the appeals. The appeals shall stand dismissed.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 3249 of 2020

(Arising out of SLP(C) No 3860 of 2020

Union of India & Ors. …Appellants

Versus

M/S G S Chatha Rice Mills & Anr. …Respondents

W I T H

Civil Appeal No 3250 of 2020

 (Arising out of SLP (C) No.3861 of 2020)

W I T H

Civil Appeal No 3250 of 2020

 (Arising out of SLP (C) No.3869 of 2020)

W I T H

Civil Appeal No 3252 of 2020

 (Arising out of SLP (C) No.3867 of 2020)

W I T H

Civil Appeal No 3253 of 2020

 (Arising out of SLP (C) No.3865 of 2020)

1

W I T H

Civil Appeal No 3262 of 2020

 (Arising out of SLP (C) No.5029 of 2020)

W I T H

Civil Appeal No 3265 of 2020

 (Arising out of SLP (C) No.7059 of 2020)

W I T H

Civil Appeal No 3267 of 2020

 (Arising out of SLP (C) No.6451 of 2020)

W I T H

Civil Appeal No 3269 of 2020

 (Arising out of SLP (C) No.7063 of 2020)

W I T H

Civil Appeal No 3270 of 2020

 (Arising out of SLP (C) No.7064 of 2020)

W I T H

Civil Appeal No 3271 of 2020

(Arising out of SLP (C) No. 7057 of 2020)

W I T H

Civil Appeal No 3272 of 2020

 (Arising out of SLP (C) No.5920 of 2020)

2

W I T H

Civil Appeal No 3273 of 2020

 (Arising out of SLP (C) No.7065 of 2020)

W I T H

Civil Appeal No 3274 of 2020

 (Arising out of SLP (C) No.7066 of 2020)

W I T H

Civil Appeal No 3275 of 2020

 (Arising out of SLP (C) No.7067 of 2020)

W I T H

Civil Appeal No 3276 of 2020

(Arising out of SLP (C) No.6189 of 2020)

W I T H

Civil Appeal No 3277 of 2020

(Arising out of SLP (C) No.7543 of 2020)

W I T H

Civil Appeal No 3278 of 2020

 (Arising out of SLP (C) No.6683 of 2020)

W I T H

3

Civil Appeal No 3279 of 2020

(Arising out of SLP (C) No.7068 of 2020)

W I T H

Civil Appeal No 3259 of 2020

 (Arising out of SLP (C) No.5036 of 2020)

W I T H

Civil Appeal No 3264 of 2020

 (Arising out of SLP (C) No.5823 of 2020)

W I T H

Civil Appeal No 3256 of 2020

 (Arising out of SLP (C) No.4960 of 2020)

W I T H

Civil Appeal No 3254 of 2020

 (Arising out of SLP (C) N0.4959 of 2020)

W I T H

Civil Appeal No 3255 of 2020

 (Arising out of SLP (C) No. 4961 of 2020)

W I T H

Civil Appeal No 3260 of 2020

 (Arising out of SLP (C) No.5822 of 2020)

4

W I T H

Civil Appeal No 3257 of 2020

 (Arising out of SLP (C) No.5033 of 2020)

W I T H

Civil Appeal No 3258 of 2020

 (Arising out of SLP (C) No. 5821 of 2020)

W I T H

Civil Appeal No 3261 of 2020

 (Arising out of SLP (C)No. 7058 of 2020)

W I T H

Civil Appeal No 3263 of 2020

 (Arising out of SLP (C) No. 5028 of 2020)

W I T H

Civil Appeal No 3266 of 2020

 (Arising out of SLP (C) No.7061 of 2020)

AND

W I T H

Civil Appeal No 3268 of 2020

 (Arising out of SLP(C) No.7062 of 2020)

5

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

This judgment has been divided into sections to facilitate analysis. They are:

A The aftermath of Pulwama

B The backdrop

C Petitions before the High Court

D The judgment of the High Court

E Submissions in the appeals

F Determination of the rate under Section 15 of the Customs Act 1962

G Precedent

H Interpreting ‘day’ and ‘date’

I Notification under Section 8A of the Customs Tariff Act

J General Clauses Act

K Information Technology Act, 2000

L Effect of notifications issued in e-gazettes

M Retrospectivity

N Summation

6

PART A

1 Leave granted.

A The aftermath of Pulwama

2 A terrorist attack took place at Pulwama on 14 February 2019. On 16

February 2019, the Union Government issued a notification under Section 8A of

the Customs Tariff Act 1975. The notification introduced a tariff entry by which all

goods originating in or exported from the Islamic Republic of Pakistan were

subjected to an enhanced customs duty of 200%. The precise time at which the

notification was uploaded on the e-Gazette was 20:46:58 hours. Customs

authorities at the land customs station at Attari sought to enforce the enhanced

rate of duty on importers who had already presented bills of entry for home

consumption before the enhanced rate was notified in the e-Gazette. Their action

led to a challenge before the High Court of Punjab and Haryana. The

consignments of import covered a diverse range of goods, ranging from dry dates

to cement.

3 On 26 August 2019, a Division Bench of the High Court of Punjab and

Haryana allowed a batch of writ petitions under Article 226 of the Constitution.

The High Court held that since the importers, who had imported goods from

7

PART A

Pakistan, had presented their bills of entry and completed the process of “selfassessment” before the notification enhancing the rate of duty to 200 per cent

was issued and uploaded, the enhanced rate of duty was not attracted. The High

Court held that the importers were liable to pay the duty applicable at the time

when the bills of entry for home consumption were filed under Section 46 of the

8

PART B

Customs Act, 1962.1

 The Union of India was ordered to release the goods within

seven days on the payment of duty ‘as declared and assessed’ without applying

the notification enhancing the rate of duty on goods originating in Pakistan.

4 The Union of India is in appeal.

5 The judgment of the High Court is titled as Rasrasna Food Private Limited

versus Union of India. Chronologically, the first petition listed before this Court by

Special Leave under Article 136 of the Constitution is in the case of G S Chatha

Rice Mills. Since the issues of law which have been raised are common to the

batch of appeals, they have been heard together.

B The backdrop

6 The First respondent is a partnership firm based in Amritsar which is, inter

alia, engaged in the import of cement. It imported a consignment of fourteen

hundred bags of cement from Pakistan under an invoice dated 1 February 2019.

A truck bearing registration number TLV-189 (cargo) crossed the ‘zero line’ on

Saturday, 16 February 2019 under entry number 47195 with a Pakistan Custom’s

Cargo Manifest bearing the time of 4:31 pm. The goods arrived at the Land

Customs Station Road Cargo, Attari Road, Amritsar on the same day and IGM

number 366870 was filed in respect of the goods. The truck unloaded its cargo at

the Central Warehousing Corporation, ICP, Attari. The arrival of the goods and

the filing of the IGM was before 18:00 hours on 16 February 2019. The First

respondent filed bill of entry number 2083178 dated 16 February 2019 seeking

clearance of the goods for home consumption. The bill of entry was self1 “the Customs Act”

9

PART B

assessed at 18:08 hours under the provisions of Section 17(1) of the Customs

Act 19622

 under Customs Tariff Heading 2523910 by levying nil customs duty in

terms of notification 68/2012 dated 31 December 2012 (as amended by

notification 50/2017- serial 129 dated 30 June 2017) and IGST at 28 percent rate

(in terms of notification 1/2017- schedule III serial No. 3). The duty payable was

assessed at Rs 73,342/-. Notification 50/2017-Cus (serial No. 129), prescribed a

preferential rate of duty on specified goods originating in the Islamic Republic of

Pakistan.

On 16 February 2019, notification 5/2019 was issued by the Ministry of Finance

in the Department of Revenue, in exercise of powers conferred by sub-section (1)

of Section 8A of the Customs Tariff Act 1975.3

 By this notification, a new tariff

entry was introduced in Chapter 98 of Section XXI in the following terms:

(1) (2) (3) (4) (5)

“9806 00 00 All goods originating in or exported

from the Islamic Republic of

Pakistan

- 200 % -”.

The notification contains a reference to the date (16 February 2019) and time

(20:46:58) at which it was uploaded and published in the e-Gazette of the

Government of India. Based on the enhancement in the rate of duty brought

about by the notification, the customs authorities refused to release the goods

which were assessed earlier. The bill of entry was recalled and reassessed on 20

2 “the Customs Act”

3 “the Customs Tariff Act”

10

PART C

February 2019 at 18:14 hours by levying customs duty at 200 per cent and IGST

at 28 per cent, enhancing the duty from Rs 73,342/- to 8,10,952/-.

7 Aggrieved by the action of the customs authorities, the first respondent

filed a petition under Article 226 for setting aside (i) the assessment of the bill of

entry to a duty of 200%; (ii) Notification 5/2019 dated 16 February 2019; and for a

direction to CWC to issue a detention memo and the release of the goods.

C Petitions before the High Court

8 The batch of petitions before the High Court involved cases of other

similarly situated importers. The facts pertaining to the writ petitions, as gleaned

from the judgment of the High Court, are summarized below:

(i) the goods were imported in the ordinary course of trade from Pakistan;

(ii) the goods entered Indian territory through the Attari border at Amritsar

before 18:00 hours on 16 February 2019;

(iii) the importers had filed bills of entry under Section 46 of the Customs

Act, before the close of working hours, seeking clearance of the goods

for home consumption;

(iv) the value and description of the goods were declared;

(v) the importers had self-assessed the goods in terms of the prevailing

notifications and had filed the bills of entry in the EDI system;

(vi) the declarations were subject to verification by the customs department

which did not dispute them and generated duty payment TR-6 challans;

(vii) since 16 February 2019 was a Saturday, the customs’ office was closed

after 18:00 hours and was to open on Monday,18 February 2019;

(viii) some of the importers paid the duty online through TR-6 challans on 16

February 2019 while in the case of others, the payment of duty was in

progress;

11

PART C

(ix) Notification 5/2019 was issued at 20:46:58 hours on 16 February 2019

following the Pulwama terrorist attack as a result of which the rate of

duty on goods originating in Pakistan was enhanced to 200 per cent

irrespective of the fact that some of the products had hitherto been

exempt from customs duty; and

(x) the customs authorities refused to release the goods on the basis of the

bills of entry which were self-assessed at the pre-existing rate and

proceeded to recall them and re-assess the goods to the enhanced rate

of duty applicable under notification 5/2019.

9 Before the High Court, the submission of the importers was that before

notification 5/2019 was issued (at 20:46 hours on 16 February 2019 in order to

discourage the import of goods from Pakistan), (i) they had placed orders; (ii) the

goods had entered into the territory of India; (iii) the goods were fully or partially

exempt from basic customs duties, but subject to IGST at the time of the filing of

the bills of entry; (iv) the exporters from Pakistan received payment of the

consideration on the basis of which the goods had been supplied; and (v) the

object of the notification was to discourage imports from Pakistan and not to

penalize Indian importers who had placed orders and had imported goods into

12

PART D

India, bona fide relying on the policy which was applicable before the notification

was issued in the late hours of the day. On the issues of law, it was urged that

after the presentation of the bills of entry for home consumption, self-assessment

and duty payment challans had been generated, it was not open to the customs

authorities to levy the enhanced rate of duty which came into force later, from

20:46 hours on 16 February 2019. The application of notification 5/2019 would, it

was urged, have retrospective effect since the bills of entry for home

consumption had been filed electronically on the customs’ automated platform

before the issuance of the notification and they were self-assessed.

10 On the other hand, the contention of the Union government before the

High Court was that under Section 15 of the Customs Act, 1962 the relevant date

for determining the rate of duty is the date of the presentation of the bill of entry.

The submission was that the amended rate of duty under notification 5/2019

came into force on 16 February 2019; hence, the importers were liable to pay

duty on the basis of the amended rate. The submission was that the customs

authorities were entitled to re-assess the bills of entry under Section 17(4).

D The judgment of the High Court

11 The High Court, after analyzing the provisions of Sections 8A and 11A of

the Customs Tariff Act, 1975 and Sections 12, 15, 17, 46 and 47 of the Customs

Act,1962 held that:

13

PART D

(i) The relevant date for the determination of duty is the date of the

presentation of the bill of entry, which, in the facts of this case, corresponds

to the date of the entry of the vehicle carrying the goods into India;

(ii) The bills of entry were presented on 16 February 2019 before the issuance

of notification 5/2019;

(iii) The dual requirements of Section 15 namely, the filing of the bill of entry

and the entry of the vehicle were fulfilled before the publication of

notification 5/2019;

(iv) The amended rate of duty was not applicable;

(v) The absence of customs’ clearance under Section 47 had no bearing on

the rate applicable;

(vi) Notification 5/2019 having been released after working hours, it would

apply from the next day as held in the decision of this Court in Union of

India vs. Param Industries Limited4

; and

(vii) A notification under Section 8A of the Customs Tariff Act, 1975 cannot

apply retrospectively.

4 (2016) 16 SCC 692

14

PART E

12 The Union of India is in appeal.

E Submissions in the appeals

13 Besides making oral submissions, Mr K M Natraj, Additional Solicitor

General of India has filed written submissions. His submissions are prefaced with

a delineation of the issue which is raised in the appeals, which is:

“…whether the amendment to the First Schedule of the

Customs Tariff Act, 1975 takes effect from the time at which it

is uploaded / notified in the gazette or from the first moment

of the day / date on which it was issued/ published in the

gazette.”

The submissions of the ASG are summarized below:

A (i) Under Section 15 of the Customs Act, the date for the determination of the

rate of duty and valuation of imported goods, in the case of goods which

are entered for home consumption under Section 46, is the date on which

the bill of entry in respect of the goods is presented. The expression “on

the date” comprehends the entire period of 24 hours, in this case

beginning at midnight on 16 February 2019;

 (ii) Section 15 does not make any reference to time and hence, irrespective of

the point of time when a notification has been uploaded or published in the

e-Gazette, the rate of duty leviable on imported goods cleared for home

consumption is, by a legal fiction, the rate prevalent on the date of the

presentation of the bill of entry;

15

PART E

(iii) Section 15 should be interpreted in light of the rule of literal construction,

and the law has to be applied as it is; and

(iv) This case is not about the prospective or retrospective application of the

Notification at issue. Rather, it is the simple intent of Parliament to

consciously make the date on which the Notification is issued as the date

for determination of the rate of duty (as applicable), which this court must

uphold.

B (i) Independent of (A) above, a notification under Section 8A(1) of the

Customs Tariff Act has the effect of amending the First schedule and is a

legislative act which dates back to the commencement of the day;

 (ii) The schedule is a part of the Act, and hence an amendment to it is an

amendment to the Act;

 (iii) Sub-section (2) of Section 8A of the Customs Tariff Act applies the

provisions of sub-sections (3) and (4) of Section 7 to a notification which is

issued under Section 8A(1);

 (iv) A notification under Section 8A(1) amending the first schedule has to be

placed before each House of Parliament and is subject to its approval and

modification; and

 (v) An amendment to the schedule, upon the exercise of powers under

Section 8A, constitutes an amendment of the Act itself which passes

through a process of receiving Parliamentary sanction and is subject to its

approval.

16

PART E

C (i) In view of (B) above, since the schedule to the Customs Tariff Act is a part

of the enactment, the provisions of the General Clauses Act 18975

 are

attracted to an amendment effected under section 8A(1);

 (ii) Section 3(7) of the General Clauses Act defines the expression ‘Central

Act’ to mean an Act of Parliament while Section 3(13) defines

‘commencement’ to mean the day on which an Act or Regulation comes

into force;

 (iii) Under Section 5(3) of the General Clauses Act, a Central Act or

Regulation, unless the contrary is expressed, comes into force immediately

on the expiration of the day preceding its commencement; and

 (iv) ‘Commencement’ can only be from a day which takes within its fold the

entire period of 24 hours from midnight of the day before the issuance of

the notification.

 D The twin requirements of Section 15 are fulfilled because

(i) The notification was issued and uploaded in the Gazette on 16 February

2019; and

(ii) The bills of entry for home consumption under Section 46 were presented

on 16 February 2019.

This is the substratum of the plea that the rate of duty prescribed by notification

5/2019 is applicable.

14 Opposing the above submissions, Mr PS Narasimha, learned Senior

Counsel submitted that

5 “the General Clauses Act”

17

PART E

A (i) The levy of customs duty under Section 12 of the Customs Act is at the

rates prescribed under the Customs Tariff Act;

 (ii) Under Section 15 of the Customs Act, the rate of duty is the rate prevalent

on the date of the presentation of the bill of entry under section 46 of the

Customs Act, where goods are cleared for home consumption; and

 (iii) The importers fulfilled the twin requirements of the goods having entered

on 16 February 2019 and the bill of entry having been filed before 20:46

hours when notification 5/2019 was issued. The bills of entry had to be

assessed to customs duty at the rate which was in existence prior to the

publication of the notification.

B (i) Notification 5/2019 having been published at 20:46:58 hours on 16

February 2019 it was never updated on the EDI portal;

 (ii) Notification 5/2019 would apply only to bills of entry for home consumption

presented after 20:46:58 hours on 16 February 2019 or upon amendment

in the online EDI portal of ICEGATE;

 (iii) A notification issued under the provisions of Section 8A (1) of the Customs

Tariff Act cannot have a retrospective character; and

 (iv) Subordinate legislation is not retrospective unless the statute under which

it has been framed, expressly or by necessary implication, imports

retrospectivity. Subordinate legislation cannot always be equated as an

‘Act of legislature’ for the interpretation of ‘Central Act’ as defined by the

General Clauses Act.

18

PART E

C (i) Digital India is a new vision and idea into which India is evolving, and we

are in a phase of governance in which multiple commercial transactions

take place every single day. Rule 5(1) of the Information Technology

(Electronic Service Delivery) Rules, 2011 mandates maintenance of

timestamps for any governmental electronic records;

 (ii) In exercise of the powers conferred by Section 157 read with Sections 46

and 47 of the Customs Act, the Central Board of Indirect Taxes and

Customs has passed the Bill of Entry (Electronic Integrated Declaration

and Paperless Processing) Regulations 20186

;

 (iii) Under Regulation 4(2), the bill of entry is deemed to have been filed and

self-assessment completed when, after the entry of the electronic

integrated declaration on the customs automated system, a bill of entry is

generated by the Indian Customs Electronic Data Interchange System and

the self-assessed copy of the bill of entry may be electronically transmitted

to the authorized person;

 (iv) In terms of the provisions of Section 15(1)(a), where goods are entered for

home consumption under Section 46, the rate of duty is the rate in force on

the date on which a bill of entry in respect of such goods is presented

under Section 46. The Regulations of 2018 have been made pursuant to

Section 46 and contain a deeming fiction which prescribes when the

presentation of the bill of entry and self-assessment is complete;

6 “the Regulations 2018”

19

PART E

 (v) Once the bills of entry were filed and self-assessment was complete, the

subsequent issuance of notification 5/2019 at 20:46:58 hours would have

no application to the present batch of cases; and

 (vi) Bills of entry, once presented, can be re-assessed under Section 17(4) only

in instances when the assessment has “not been done correctly” upon

verification, examination or testing of the goods by the proper officer. None

of these circumstances are applicable to the present case.

D The purpose of the notification being to discourage the import of goods

from Pakistan, it has prospective effect: the object and purpose is not to penalize

Indian importers who had completed their imports, presented bills of entry for

home consumption and had completed self-assessment in terms of the

provisions of the Customs Act and the Regulations, prior to the issuance of the

notification.

The submissions which were urged by Mr P S Narasimha have been supported

by other learned counsel appearing for the respondents including Mr Devashish

Bharuka, Ms Anjana Gusain, Mr Anant Agrawal, Ms Sishti Agarwal, Mr Parmatma

Singh and Mr Saurabh Kapoor.

15 The rival submissions are considered below.

20

PART F

F Determination of the rate under Section 15 of the Customs Act 1962

16 Chapter V of the Customs Act provides for the levy of and exemption from

customs duties. Section 12(1), which is the charging provision, provides for the

levy of duties of customs on goods imported into, or exported from India at the

rates specified by the Customs Tariff Act or, in any other law for the time being in

force. Section 15(1) is extracted below:

“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 a bill of entry for home

consumption in respect of such goods is presented under that

section];

(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 or the arrival of the aircraft

or the vehicle by which the goods are imported, the bill of

entry shall be deemed to have been presented on the date of

such entry inwards or the arrival, as the case may be.

The provisions of this section shall not apply to baggage and

goods imported by post.”

(emphasis supplied)

21

PART F

17 Section 12 specifies that the rates of duty on goods imported and exported

are those which are provided in the Customs Tariff Act or in any other law.

Section 12 does not indicate when the duties under those enactments will come

into being or force. Section 15 specifies the date with reference to which the rate

of duty and tariff valuation of imported goods is determined. Clauses (a), (b) and

(c) of sub-section (1) of section 15 contain distinct provisions which apply to:

(i) goods entered for home consumption under Section 46;

(ii) goods cleared from a warehouse under Section 68; and

(iii) other goods.

Where goods are entered for home consumption under Section 46, the rate of

duty and tariff valuation is to be the rate and valuation “in force” “on the date on

which” a bill of entry in respect of such goods is presented under that Section. In

relation to the rate of duty, the effect of clause (a) of Section 15(1), is that the rate

which is in force on the date on which a bill of entry is presented under Section

46 (in the case of goods entered for home consumption) is applicable to the

imported goods. When the duties come into force under the enactments imposing

them is dependent on and defined by the terms of the particular enactment.

18 Chapter IX of the Customs Act contains provisions for warehousing.

Section 68 which falls under that Chapter stipulates that goods which have been

warehoused may be cleared for home consumption if:

a) A bill of entry for home consumption has been presented;

b) Import duty, interest, fine and penalties, as applicable, have been paid; and

22

PART F

c) An order for clearance for home consumption has been made by the

proper officer.

Provided that the order referred to in clause (c) may also be made electronically

through the customs automated system on the basis of risk evaluation through

appropriate selection criteria.

For goods which are cleared from a warehouse under Section 68, clause (b) of

Section 15 (1) provides that the rate of duty and valuation are those “in force” “on

the date” on which a bill of entry for home consumption is presented under

Section 68. In the case of other goods, it is the date of the payment of duty which

determines the rate of duty under clause (c) of Section 15(1).

The proviso to Section 15 (1) contemplates a situation where a bill of entry has

been presented before the date of the entry inwards of the vessel or the arrival of

the aircraft or vehicle through which the goods are imported. Under the proviso to

Section 46(3), a bill of entry may be presented at any time not exceeding thirty

days prior to the expected arrival of the aircraft or vehicle by which the goods

have been shipped for importation into India. Dealing with such a situation, the

proviso to Section 15(1) states that if a bill of entry has been presented prior to

the date of the entry inwards of the vessel or the arrival of the aircraft or vehicle

by which the goods are imported, the bill of entry is deemed to have been

presented on the date of the entry inwards or the arrival of the goods. Hence

even where the bill of entry has been presented before the date of the entry

inwards or the arrival of the aircraft or vehicle, the rate of duty is determined with

reference to the date of entry inwards or the arrival of the aircraft or vehicle. This

23

PART F

is a consequence of the deeming fiction under the proviso, as a result of which

the presentation of the bill of entry, when filed prior to the arrival of the goods, is

deemed to be on the date of the entry inwards or the arrival of the aircraft or

vehicle. Hence, implicit in the provisions of Section 15(1) are the dual or (as

counsel before the court described them) the twin requirements of (i) the

presentation of the bill of entry; and (ii) the entry inwards of the vessel or, as the

case may be, the arrival of the aircraft or vehicle.

19 Section 17 provides for the assessment of duty. Section 46 provides for the

entry of goods on importation. Both the provisions of Section 17 and Section 46

have undergone legislative changes by Act 8 of 2011 and by the Finance Act of

2018. By Act 8 of 2011, Section 17 was substituted and Section 46 was amended

to provide for the presentation in the electronic form of a bill of entry for home

consumption or warehousing. Section 46 provides as follows:

“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

[electronically] [on the customs automated system] to

the proper officer a bill of entry for home consumption or

warehousing in such form and manner as may be

prescribed: Provided that the [Principal Commissioner of

Customs or Commissioner of Customs] may, in cases

where it is not feasible to make entry by presenting

electronically on the customs automated system, allow

an entry to be presented in any other manner: Provided

further 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.

24

PART F

(2) Save as otherwise permitted by the proper officer, a bill of

entry shall include all the goods mentioned in the bill of lading

or other receipt given by the carrier to the consignor.

(3) The importer shall present the bill of entry under subsection (1) before the end of the next day following the day

(excluding holidays) on which the aircraft or vessel or vehicle

carrying the goods arrives at a customs station at which such

goods are to be cleared for home consumption or

warehousing: Provided that a bill of entry may be presented

at any time not exceeding thirty days prior to the expected

arrival of the aircraft or vessel or vehicle by which the goods

have been shipped for importation into India: Provided further

that where the bill of entry is not presented within the time so

specified and the proper officer is satisfied that there was no

sufficient cause for such delay, the importer shall pay such

charges for late presentation of the bill of entry as may be

prescribed.

(4) The importer while presenting a bill of entry shall make

and subscribe to a declaration as to the truth of the contents

of such bill of entry and shall, in support of such declaration,

produce to the proper officer the invoice, if any, [and such

other documents relating to the imported goods as may be

prescribed].

(4A) The importer who presents a bill of entry shall ensure the

following, namely:—

(a) the accuracy and completeness of the information

given therein;

(b) the authenticity and validity of any document

supporting it; and

(c) compliance with the restriction or prohibition, if any,

relating to the goods under this Act or under any other

law for the time being in force…….”

 (emphasis supplied)

Sub-section (1) of Section 46 requires an importer of goods to make an entry by

presenting a bill of entry for home consumption or warehousing “electronically

on the customs automated system” to the proper officer “in such form and

manner as may be prescribed”. The word ‘electronically’ was introduced by Act

25

PART F

8 of 2011 with effect from 8 April 2011. The provision for the presentation of the

bill of entry on the customs automated system and in ‘such form and manner as

prescribed’ was introduced by the Finance Act of 2018. Under sub-section (3) of

Section 46, a bill of entry under sub-section (1) must be presented before the end

of the day following the day on which the aircraft, vessel or vehicle carrying the

goods arrives at a customs station at which the goods are to be cleared for home

consumption or warehousing (holidays being excluded). The first proviso to subsection (3) enables the presentation of a bill of entry before arrival, at a time not

exceeding thirty days prior to the expected arrival of the aircraft, vessel or vehicle

by which the goods have been shipped for importation. Under the second proviso

if the bill of entry is not presented within the specified time without sufficient

cause, the importer is required to pay the charges prescribed for late presentation

of the bill of entry.

20 Section 17 makes provisions for the assessment of duty:

“Assessment of duty.

17. Assessment of duty --(1) An importer entering any

imported goods under section 46, or an exporter entering any

export goods under section 50, shall, save as otherwise

provided in section 85, self-assess the duty, if any, leviable on

such goods.

(2) The proper officer may verify [the entries made under

section 46 or section 50 and the self-assessment of goods

referred to in sub-section (1)] and for this purpose, examine or

test any imported goods or export goods or such part thereof

as may be necessary.

Provided that the selection of cases for verification shall

primarily be on the basis of risk evaluation through appropriate

selection criteria.

(3) For the purposes of verification under sub-section (2), the

proper officer may require the importer, exporter or any other

person to produce any document or information, whereby the

duty leviable on the imported goods or export goods, as the

26

PART F

case may be, can be ascertained and thereupon, the importer,

exporter or such other person shall produce such document or

furnish such information.

(4) Where it is found on verification, examination or

testing of the goods or otherwise that the self-assessment

is not done correctly, the proper officer may, without

prejudice to any other action which may be taken under

this Act, re-assess the duty leviable on such goods…..”

(5) Where any re-assessment done under sub-section (4) is

contrary to the self-assessment done by the importer or

exporter and in cases other than those where the importer or

exporter, as the case may be, confirms his acceptance of the

said re-assessment in writing, the proper officer shall pass a

speaking order on the re-assessment, within fifteen days from

the date of re-assessment of the bill of entry or the shipping

bill, as the case may be.

Explanation.-For the removal of doubts, it is hereby declared

that in cases where an importer has entered any imported

goods under section 46 or an exporter has entered any export

goods under section 50 before the date on which the Finance

Bill, 2011 receives the assent of the President, such imported

goods or export goods shall continue to be governed by the

provisions of section 17 as it stood immediately before the

date on which such assent is received.”

(emphasis supplied)

Prior to its substitution by Amending Act 8 of 2011, Section 17 contained

requirements for (i) examination and testing of goods; and (ii) assessment.

Section 17, as it stood prior to substitution, was in the following terms:

“17. Assessment of Duty. –

(1) After an importer has entered any imported goods under

section 46 or an exporter has entered any export goods

under, section 50 the imported goods or the export goods, as

the case may be, or such part thereof as may be necessary

may, without undue delay, be examined and tested by the

proper officer.

(2) After such examination and testing, the duty, if any,

leviable on such goods shall, save as otherwise provided in

section 85, be assessed.

27

PART F

(3) For the purpose of assessing duty under sub-section (2),

the proper officer may require the importer, exporter or any

other person to produce any contract, broker's note, policy of

insurance, catalogue or other document whereby the duty

leviable on the imported goods or export goods, as the case

may be, can be ascertained, and to furnish any information

required for such ascertainment which it is in his power to

produce or furnish, and thereupon the importer, exporter or

such other person shall produce such document and furnish

such information.

(4) Notwithstanding anything contained in this section,

imported goods or export goods may, prior to the examination

or testing thereof, be permitted by the proper officer to be

assessed to duty on the basis of the statements made in the

enter relating thereto and the documents produced and the

information furnished under sub-section (3); but if it is found

subsequently on examination or testing of the goods or

otherwise that any statement in such entry or document or

any information so furnished is not true in respect of any

matter relevant to the assessment, the goods may, without

prejudice to any other action which may be taken under this

Act, be re-assessed to duty.

(5) Where any assessment done under sub-section (2) is

contrary to the claim of the importer or exporter regarding

valuation of goods, classification, exemption or concessions

of duty availed consequent to any notification therefore under

this Act, and in cases other than those where the importer or

exporter, as the case may be, confirms his acceptance of the

said assessment in writing, the proper officer shall pass a

speaking order within fifteen days from the date of

assessment of the bill of entry or the shipping bill, as the case

may be.”

The amendment of 2011 has made significant legislative changes in the

procedure and modalities for assessment of duty under Section 17. Under subsection 1 of Section 17, the importer entering imported goods under Section 46,

has to ‘self-assess’ duty (except as otherwise envisaged in the provisions of

Section 85). Under sub-section (2), the proper officer may verify the entries made

under Section 46 and the self-assessment made under sub-section (1) and may

examine or test the goods. The selection of goods for verification has to be

28

PART F

primarily on the basis of risk evaluation through appropriate selection criteria.

Under sub-section (4), where it is found on verification, examination or testing of

goods or otherwise that the self-assessment has not been done properly the

proper officer is entrusted with a power of re-assessment. Sub-section (5)

requires the passing of a speaking order upon re-assessment.

21 Section 47 provides for the clearance of goods for home consumption:

“Clearance of goods for home consumption.

(1) Where the proper officer is satisfied that any goods

entered for home consumption are not prohibited goods

and the importer has paid the import duty, if any,

assessed thereon and any charges payable under this Act in

respect of the same, the proper officer may make an order

permitting clearance of the goods for home

consumption:

Provided that such order may also be made electronically

through the customs automated system on the basis or

risk evaluation through appropriate selection criteria:

Provided further that the Central Government may, by

notification in the Official Gazette, permit certain class of

importers to make deferred payment of said duty or any

charges in such manner as may be provided by rules.

(2) The importer shall pay the import duty--

(a) on the date of presentation of the bill of entry in the

case of self assessment; or

(b) within one day (excluding holidays) from the date on which

the bill of entry is returned to him by the proper officer for

payment of duty in the case of assessment, reassessment or

provisional assessment; or

(c) in the case of deferred payment under the proviso to subsection (1), from such due date as may be specified by rules

made in this behalf,

and if he fails to pay the duty within the time so specified, he

shall pay interest on the duty not paid or short-paid till the

date of its payment, at such rate, not less than ten per cent.

but not exceeding thirty-six per cent. per annum, as may be

fixed by the Central Government, by notification in the Official

Gazette……”

 (emphasis supplied)

29

PART F

Sub-section (2) of Section 47 requires the importer to pay import duty “on the

date of presentation of the bill of entry in the case of self-assessment”.

Alternatively, where the bill of entry is returned to the importer for the payment of

duty in the case of assessment, re-assessment or provisional assessment, the

import duty has to be paid within a day, after excluding holidays.

The provisions contained in Section 46 for the entry of goods on importation and

those in Section 17 for assessment form part of a composite scheme. Section 46

requires an importer of goods to make an entry in the electronic form of a bill of

entry for home consumption or, as the case may be, for warehousing, on the

customs automated system. An exception is contained in the proviso to Section

46 (1) for cases where it is not feasible to make an entry in the electronic form on

the customs automated system. The bill of entry under sub-section (1) has to be

presented not later than the day following the arrival of the goods though it can

be presented before the arrival of goods, at a time not exceeding thirty days prior

to their expected arrival. In tandem with the provisions of Section 46, Section 17

provides for the self-assessment of duty by the importer.

Section 46(1) stipulates that the bill of entry has to be presented in the form and

in the manner ‘prescribed’. The expression ‘prescribed’ is defined in Section 2(32)

to mean prescribed by regulations made under the Act. The Bill of Entry

(Electronic Integrated Declaration and Paperless Processing) Regulations 2018

have been made in pursuance of the enabling power conferred by Sections 46

and 47 and Section 157 which contains a general power to make regulations.

30

PART F

Section 157(2)(a) was amended by the Finance Act 2018 (Act 13 of 2018) to

allow for the power to frame regulations on the form and manner of delivering or

presenting inter alia a bill of entry. Regulation 2(c) of the 2018 Regulations

defines the expression bill of entry in the following terms:

“(c) “bill of entry” means electronic integrated declaration

accepted and a unique number generated and assigned to

that particular bill of entry by the Indian Customs Electronic

Data Interchange System, and includes its electronic records

or print-outs”

Regulation 2(d) defines the expression electronic integrated declaration:

“(d) “electronic integrated declaration” means particulars

relating to the imported goods that are entered in the Indian

Customs Electronic Data Interchange System”

Under Regulation 2(e), “ICEGATE” is the customs automated system of the

Central Board of Indirect Taxes and Customs. Regulation 3 requires the

authorized person (defined in Regulation 2(b)7

), which includes the importer, to

enter the electronic integrated declaration and supporting documents by affixing a

digital signature. Regulation 3 is as follows:

“3. The authorised person shall enter the electronic integrated

declaration and the supporting documents himself by affixing

his digital signature and enter them on the Customs

Automated System and he may also get the electronic

integrated declaration made on the customs automated

system along with the supporting documents by availing the

services at the service centre.”

Regulation 4 provides as follows

7 2(b) “authorised person” means an importer or a person authorised by him who has a valid licence under

the Customs Brokers Licensing Regulations, 2013 or any other regulation dealing with the similar matters

and it also includes an employee of the Customs broker who has been issued a photo identity card in Form

G under the Customs Brokers Licensing Regulations, 2013 or any other regulation dealing with the similar

matters;

31

PART F

“4. (1) The authorised person shall file the bill of entry before

the end of the next day following the day (excluding holidays)

on which the aircraft or vessel or vehicle carrying the goods

arrives at a customs station at which such goods are to be

cleared for home consumption or warehousing.

(2) The bill of entry shall be deemed to have been filed

and self-assessment completed when after entry of the

electronic integrated declaration on the customs

automated system or by way of data entry through the

service centre, a bill of entry number is generated by the

Indian Customs Electronic Data Interchange System for

the said declaration and the self-assessed copy of the

Bill of Entry may be electronically transmitted to the

authorised person or printed out at the service centre.

(3) Where the bill of entry is not filed within the time specified

in sub-regulation (1) and the proper officer of Customs is

satisfied that there was no sufficient cause for such delay, the

importer shall be liable to pay charges for late presentation of

the bill of entry at the rate of ……”

(emphasis supplied)

22 The Regulations of 2018 have made provisions for submission of a

declaration and generation of the bill of entry in an electronic form on the

automated platform provided by the Central Board of Indirect Taxes and

Customs. Sub-regulation (2) of Regulation 4 embodies a legal fiction. Regulation

4(2) stipulates that the bill of entry is deemed to have been filed and selfassessment completed when after the entry of the electronic integrated

declaration on the customs automated system (or by data entry through a service

centre) a bill of entry number is generated by the Indian Customs Electronic Data

Interchange (“EDI”) System. The self-assessed copy of the bill of entry may be

electronically transmitted to the authorized person under the deeming fiction

which is created by Regulation 4(2). Hence, the bill of entry is deemed to be filed

and the self-assessment completed when the requirements of Regulation 4(2)

are fulfilled namely by the (i) entry of the declaration on the customs automated

32

PART F

system; and (ii) generation of a bill of entry number by the EDI system. Following

this, the self-assessed copy of the bill of entry is electronically transmitted to the

authorized person.

23 In terms of the provisions of Section 15(1)(a), in the case of goods which

are entered for home consumption under Section 46, the date of presentation of

the bill of entry determines the rate of duty and tariff valuation. Under Section

47(2)(a), the importer is obliged to pay the import duty on the date of the

presentation of the bill of entry in the case of self-assessment. Regulation 4(2) of

the Regulations of 2018 categorically stipulates when the presentation of the bill

of entry is complete. Once the bill of entry is deemed to have been presented in

terms of Regulation 4(2) the rate and valuation in force stand crystalized under

Section 15(1)(a). Section 17(4) confers a power of re-assessment on the proper

officer where it is found on verification, examination or testing of the goods or

otherwise- that the self-assessment has not been done correctly. In the present

case the customs authorities sought to exercise the power of re-assessment on

the ground of the subsequent notification enhancing the rate of duty. The fact of

the matter is that self-assessment was carried out on the basis of the rate of duty

which prevailed at the time of the presentation of the bill of entry. This is not and

cannot be a matter of dispute. Notification 5/2019, which introduced a new tariff

entry – 980 60 000 - in the First schedule to the Customs Tariff Act covering all

goods originating in or exported from the Islamic Republic of Pakistan, was not in

force at the time when the self-assessment was carried out.

24 Under Section 15(1)(a) the rate of duty is the rate in force on the date of

the presentation of a bill of entry where the goods are entered for home

consumption under Section 46. The submission of the learned ASG is that the

33

PART F

expression “on the date” is adopted by the legislature in clauses (a) and (b) and

in the proviso to Section 15(1). He urged that Section 15(1) has no reference to

time but only to the date of the presentation of the bill of entry and once a

notification was issued on 16 February 2019 enhancing the rate of duty, that is

the duty ‘in force’ on the date of presentation. Section 15(1)(a) uses two

expressions (i) the rate and valuation “in force”; and (ii) “on the date” of the

presentation of the bill of entry for home consumption under Section 46. The

provisions of Section 15(1)(a) have to be read in conjunction with the provisions

of Section 46 which are referred to in the former provision. Section 46 has

incorporated a regime which encompasses the submission of the bill of entry for

home consumption or warehousing in an electronic format, on the customs

automated system in the manner which is prescribed. The Regulations of 2018

stipulate the manner in which the bill of entry has to be presented. The deeming

fiction in Regulation 4(2) specifies when presentation of the bill of entry and ‘selfassessment’ are complete. The rate of duty stands crystallized under Section

15(1)(a) once the deeming fiction under Regulation 4(2) comes into existence.

The regulations have to be read together with the statutory provisions contained

in Section 15(1)(a) and Section 46, while determining the rate of duty.

34

PART G

G Precedent

25 At this stage it is necessary to analyze the precedent on the subject. In

Bharat Surfactants (Private) Limited vs. Union of India8

 (“Bharat

Surfactants”), customs duty was imposed on the import of edible oil by the

petitioners at the rate of 150 per cent on the basis that the import was made on

the date of the inward entry, which was 31 July 1981. The vessel arrived and

registered in the Port of Bombay on 11 July 1981 but since a berth was not

available, the cargo could not be unloaded. The vessel left Bombay and

proceeded to Karachi and returned towards the end of July 1981. The rate of

customs duty prevailing on 11 July 1981 was 12.5 per cent and the contention of

the importer was that but for the fact that the vessel was unable to secure a

berth, it would have delivered the cargo. Speaking for a Constitution Bench, Chief

Justice R S Pathak rejected the contention of the importer that the import of

goods must be deemed to have taken place on 11 July 1981 when the ship

originally arrived in Bombay port and registered itself. The Constitution Bench

held:

“14…The provisions of Section 15 are clear in themselves.

The date on which a Bill of Entry is presented under Section

46 is, in the case of goods entered for home consumption, the

date relevant for determining the rate of duty and tariff

valuation. Where the Bill of Entry is presented before the date

of Entry Inwards of the vessel, the Bill of Entry is deemed to

have been presented on the date of such Entry Inwards.”

8 (1989) 4 SCC 21

35

PART G

The Constitution Bench held that the date of entry inwards of the vessel in the

Customs’ register was mentioned as 31 July 1981 and the rate of import duty and

tariff valuation would be that which was in force on that day. The decision in

Bharat Surfactants was adverted to in the decision of this court in Priyanka

Overseas Pvt. Ltd. vs. Union of India9

. Justice N M Kasliwal, speaking for the

two judge Bench, observed:

“34…The rate of duty and tariff valuation on the imported

goods may be changed from time to time and as such the

legislature has clearly expressed its intention under Section 15

as to on what date the rate of duty and tariff valuation is to be

determined…

Many contingencies may happen in between the filing of bill of

entry and actual removal of the goods from the warehouse for

which sometimes the importer of goods may himself be

responsible, in some cases the responsibility may lie on the

customs authorities and there may also be contingencies

beyond the control of both the parties. In any case the

intention of the legislature being clear, rate of duty is to be

applied, as may be in force on the date of actual removal of

goods from the warehouse under Section 15(1)(b) of the

Customs Act.”

The above observations, referring to the date of the actual removal of goods from

the warehouse, were made in the context of the provisions of Section 15(1)(b). In

a subsequent decision in Dhiraj Lal H Vohra vs. Union of India10, Justice K

Ramaswamy speaking for a three judge Bench observed:

“3. It is clear from a bare reading of these relevant provisions

that the due date to calculate the rate of duty applicable to

any imported goods shall be the rate and valuation in force, in

the case of the goods entered for home consumption under

Section 46, is the date on which the bill of entry in respect of

9 1991 Supp (1) SCC 102

10 1993 Supp (3) SCC 453

36

PART G

such goods is presented under that section and in the case of

goods cleared from a warehouse under Section 68, the date

on which the goods are actually removed from the

warehouse. By operation of the proviso if a bill of entry has

been presented before the date of entry inwards the bill of

entry shall be deemed to have been presented “on the date of

such entry inwards” but would be subject to the operation of

Sections 46 and 31(1) of the Act.”

In that case the ship had arrived at the Port of Madras on 20 February 1989 and

was ready to discharge her cargo. Though the import manifest was delivered, the

cargo could not be handled as a result of a continuous strike. The bill of entry for

clearance of goods for home consumption was presented on 27 February 1989.

The ship arrived into the port and was berthed on 2 March 1989 on which date

the entry inwards was granted. From 1 March 1989, the rate of duty was

increased. The court rejected the contention that since the vessel had entered

Indian territorial waters on 20 February 1989 when she was ready to discharge

the cargo, the rate of duty must be that which prevailed on that date:

“3…The contention, therefore that the ship entered Indian

territorial waters on February 20, 1989 and was ready to

discharge the cargo is not relevant for the purpose of Section

15(1) read with Sections 46 and 31 of the Act. The prior

entries regarding presentation of the bill of entry for clearance

of the goods on February 27, 1989 and their receipt in the

appraising section on February 28, 1989 also are irrelevant.

The relevant date to fix the rate of customs duty, therefore, is

March 2, 1989. The rate which prevailed as on that date

would be the duty to which the goods imported are liable to

the impost and the goods would be cleared on its payment in

accordance with the rate of levy of customs prevailing as on

March 2, 1989.”

Another decision of a Bench comprising three learned judges of this Court in

D.C.M. vs. Union of India11 held as follows:

11 1995 Supp (3) SCC 223

37

PART G

“7…A reading of Sections 15, 46 and 68 makes it clear that

they provide an option to the importer either to file a bill of

entry for home consumption straight away (in which case he

38

PART H

has to pay the duty determined with reference to that date) or

to file a bill of entry for warehousing. In the latter case, the

goods are merely warehoused. The import duty will be levied

at the rate and on the basis of the valuation determined in

accordance with the provisions prevailing on the date of

clearance from the warehouse for which purpose the importer

has to file a fresh bill of entry for home consumption. In other

words, it is the date of filing the bill of entry for home

consumption which determines the rate of duty in clauses (a)

and (b) of Section 15. Inasmuch as the matter is left to the

option of the importer and also because a uniform principle is

adopted by the Act, as explained above, we see no room for

any legitimate grievance of discrimination. There is also no

presumption that rate of duty always goes up. It may also go

down, in which case, the importer stands to gain.”

26 The presentation of a bill of entry for home consumption under Section 46

is hence the definitive event with reference to which the customs’ duty payable

for import is determined. The duty in force on the day when the bill of entry for

home consumption is presented is the duty which is applicable under Section

15(1)(a). It is in view of this principle that the entry of the vessel into territorial

waters, before the presentation of the bill of entry, has been held not to fix the

rate of duty where the rate of duty has undergone a change.

H Interpreting ‘day’ and ‘date’

27 The expressions “day” and “date” have been construed in varying contexts

in the precedents of this Court. The underlying feature of the decisions is that the

content of those expressions is based on the context. In Raj Kumar Yadav vs.

Samir Kumar Mahaseth12, the limitation provided by Section 81 of the

Representation of the People Act 1951 expired on the 45th day from the date of

12 (2005) 3 SCC 601

39

PART H

the election. Interpreting the provision, Chief Justice R.C. Lahoti while speaking

for a three judge Bench of this Court observed :

“6…The word “day” is not defined in the Act. It shall have to

be assigned its ordinary meaning as understood in law. The

word “day” as per English calendar begins at midnight and

covers a period of 24 hours thereafter, in the absence of there

being anything to the contrary in the context.”

Hence, in that case the Election Petition could have been presented up to

midnight falling between 27 and 28 August 2003. The Court observed that the

limitation which was prescribed by the statute could not be curtailed or taken

away by the rules of the High Court, governing its procedure.

28 In New India Assurance Co. Ltd. vs. Ram Dayal13 (“Ram Dayal”), a two

judge Bench of this Court noted that the insurance policy in respect of the vehicle

was up to 31 August 1984 and could be renewed. Instead of renewing the policy,

a fresh insurance policy was taken from 28 September 1984, on which date the

accident occurred. This Court upheld the view of the Punjab and Haryana High

Court, which was supported by earlier decisions of the Madras High Court,

Punjab and Haryana High Court and the Allahabad High Court, that the insurance

cover commenced from the beginning of the day and concluded that:

“4… when a policy is taken on a particular date, its

effectiveness is from the commencement of the date and,

therefore, the High Court, in our opinion, was right in holding

that the insurer was liable in terms of the Act to meet the

liability of the owner under the award.”

13 (1990) 2 SCC 680

40

PART H

29 On the other hand, in National Insurance Company Limited vs. Geeta

Devi14, the cover note was issued on 9 June 1989 at 4:40 pm while the accident

took place at 11:30 am on the same day. A two judge Bench of this Court

distinguished the decision in Ram Dayal (supra) and held that when the cover

note mentioned the date of issue of the policy as 9 June 1989 and the time as

4:40 pm “ it necessarily means that the effective date of issue and time of issue is

as mentioned on the cover note.” Since the cover note mentioned both the date

and time, the Court held that the principle that the insurance cover would date

back to midnight of the preceding day would not cover the factual situation.

30 In Ahmadsahab Abdul Mulla (2) Dead by proposed Lrs. vs. Bibijan15

,

the issue before this Court was whether the expression “date” in Article 54 of the

Schedule to the Limitation Act (which prescribes the period of limitation for a suit

for specific performance) is suggestive of a specific date in the calendar. The

court observed:

“11. The inevitable conclusion is that the expression “date

fixed for the performance” is a crystallised notion. This is clear

from the fact that the second part “time from which period

begins to run” refers to a case where no such date is fixed. To

put it differently, when date is fixed it means that there is a

definite date fixed for doing a particular act. Even in the

second part the stress is on “when the plaintiff has notice that

performance is refused”. Here again, there is a definite point

of time, when the plaintiff notices the refusal. In that sense

both the parts refer to definite dates. So, there is no question

of finding out an intention from other circumstances.”

14 (2010) 15 SCC 670

15 (2009) 5 SCC 462

41

PART H

31 The expression ‘date’ in Article 54 was held to be suggestive of a specified

date in the calendar. In Pashupati Nath Singh vs. Harihar Prasad Singh16, a

three judge Bench construed the words “on the date fixed for scrutiny” in Section

36(2)(a) of the Representation of the People Act 1951. Interpreting those words,

the Court held that the qualification of a candidate must exist from the earliest

moment of the day of scrutiny:

“13. It seems to us that the expression “on the date fixed for

scrutiny” in Section 36(2)(a) means “on the whole of the day

on which the scrutiny of nomination has to take place”. In

other words, the qualification must exist from the earliest

moment of the day of scrutiny. It will be noticed that on this

date the Returning Officer has to decide the objections and

the objections have to be made by the other candidates after

examining the nomination papers and in the light of Section

36(2) of the Act and other provisions. On the date of the

scrutiny the other candidates should be in a position to raise

all possible objections before the scrutiny of a particular

nomination paper starts.”

32 A Special Bench of the Madras High Court in Re Court Fees17 dealt with

the interesting issue of whether the law disregards fractions of the day. A

notification was published in the Fort St. George Gazette on 5 May 1922 by

which the table of fees leviable in respect of the institution of suits under

Appendix – II of the old rules on the Original side was amended. Instead of a

fixed fee of Rs 30, it was provided that Rs 150 was to be levied in all suits where

the value of the subject matter did not exceed Rs 10,000/- and in respect of suits

of a higher value, Rs 20/- was to be levied for every Rs 5,000/- or part thereof in

excess of Rs 10,000/-. The notification stated that “the amendments do come

into force from the date of publication in the Fort St. George Gazette”. The

16 (1968) 2 SCR 812

17 ILR (1923) 46 Mad 685

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PART H

office hours of the High Court were from 11am to 5pm. The notification reached

the High Court at about 5pm, at the close of the office hours. The issue before the

Special Bench was whether the rules imposing increased institution fees on suits

on the Original side of the High Court would apply the new scale to suits which

had already been instituted on that day. Chief Justice Schwabe, on behalf of the

majority, held “that the hour of the day at which the Gazette was actually

published is a wholly irrelevant consideration”. The Chief Justice noted that the

use of the expression ‘from’ may have one of two meanings namely on and after,

that is including the named date, or merely after, that is excluding the named

date. The Chief Justice took the view that it is necessary to look at the context

and the circumstances of each case to arrive at the true construction. Having said

this, the Chief Justice outlined the principles in the following extract on page 688:

“(1) that, if the named date is the beginning of a defined

limited period, that, where there is a terminus ad quem as

well as a terminus a quo, then prima facie the first day is

excluded; (2) that, if the named date is the beginning of an

indefinite period then prima facie the first day is included. I

say prima facie because in my view there must be

exceptions”.

In his view, the expression “from a named date” meant “on and after that day”.

Hence the date on which the notification was published in the official Gazette was

held to apply to all plaints which were filed on 5 May 1922.

Justice Coutts Trotter, arrived at the same conclusion as the Chief Justice,

following a different path, which he set out in the following observations, on page

691 :

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PART H

“What I conceive to emerge from the decided cases is this:

that as the law in general neglects fractions of a day you must

either exclude or include the whole of the day with which a

given statute or rule or regulation deals. And the exclusion or

inclusion, I think, is clearly provided in two other rules. If you

are fixing the point of time at which a certain state of things is

to be called into existence, that state of things comes into

existence at midnight of the day preceding the day at which or

on which or from which or from and after which the new state

of things begins. In such cases the statue or rule is only

concerned in fixing the terminus a quo of a new state of law

which is enacted to continue indefinitely, in other words, until

repealed by a new enactment of the legislature where, in

short, you have a terminus a quo but no terminus ad quem.”

In his view, on page 693:

“Where a statute fixes only the terminus a quo of a state of

things, which is envisaged as to last indefinitely, the common

law rule obtains that you ought to neglect fractions of a day

and the statute or regulation or order takes effect from the

first moment of the day on which it is enacted or passed, that

is to say, from midnight of the day preceding the day on which

it is promulgated: where on the other hand, a statute delimits

a period marked both by a terminus a quo and a terminus ad

quem, the former is to be excluded and the latter to be

included in the reckoning.”

The notification, in this view, fell in the former class and was held to have come

into force on the first second of the 5 May, that is to say from midnight of 4 May.

Hence all plaints which were filed on 5 May were liable to the enhanced fee.

The tightly reasoned and eloquent dissenting opinion delivered by Justice

Kumaraswami Sastri, on the other hand, deserves close attention. The learned

Judge noted that if the case were to be decided on the principle that the law

disregards fractions of a day, it could mean any one of two things: either that a

fraction of a day is to be taken as a whole day or that it is to be excluded

44

PART H

altogether from the calculation. Consequently, “it does not help us to determine in

any particular case whether the part is to be left out or kept in”. Justice

Kumaraswami Sastri observed that there is no invariable rule that the use of the

expression ‘from’ includes the first day. Nor was there any basis in principle in the

submission of the Crown that the exclusion of the first day where the word “from”

is used is only to be in case where there are two termini. The learned Judge held

that rules of equity and good conscience are by the Civil Courts Act to govern

cases not governed by the Hindu and Mohammedan Laws. Voicing a powerful

dissent, Justice Kumaraswami Sastri observed, on page 704:

“I do not think that the principles which govern, or the devices

which are resorted to, by the Executive for the purpose of

raising money by taxation ought to have any weight with us in

determining whether the date of publication is to be included

or excluded. I do not think the High Court is part of the tax

gathering machinery of the Government or has any concern

with the consequences to the Government of their decision on

the construction of the rule. The rule, I take it, was passed by

the Judges of the High Court in the exercise of the powers

entrusted to them to control the administration of justice and

the fees were raised because in the opinion of the Judges it

was just and proper that litigants ought to pay more for the

benefits which they derive by resorting to the jurisdiction of

the High Court”.

In the view of the learned Judge, the notification having been received in the

Registry of the High Court at 5pm at the office closing hour, litigants who had

filed plaints before either or they or the office had knowledge of the publication

“did what was perfectly valid under the old rules and they presented the plaints

with Rs 30 stamp irrespective of the value of their claim”. Looking at it from the

citizens’ perspective, the learned Judge observed, on page 704:

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PART H

“A person who files a plaint which is properly stamped and

which is in order at the time of presentation is entitled to have

his plaint admitted on presentation though as a matter of

convenience the office receives the plaints and admits them

at the end of the day or later on. There seems to me to be

very little justice or equity in directing that persons who have

done what was perfectly a legal and valid act at the time

should pay a Court-fee which is much higher simply because

a notification was received at the close of the day making the

higher fees chargeable from the date of the notification. It

may well be that if those persons had notice that instead of

Rs. 30 they had to pay at least Rs 150 and a maximum that

would range according to the value of their claim, they might

rather have compromised with the other side or might have

had resort to other proceedings like arbitration for settling

their claims. I can find nothing to justify charging people, who

filed their plaints on that day without knowledge of the

notification which only reached the High Court at 5 p.m., with

the higher fees in respect of plaints filed during the course of

the day”.

33 Mr Natraj, on behalf of the Union, submitted that Parliament has employed

the phrase “on the date” without making a reference to time. Hence, he submitted

that irrespective of the time of the publication or uploading of the notification

under the Customs Tariff Act in the e-Gazette, the legislature has by a legal

fiction, enacted that the rate of duty on imported goods will be the rate that is

prevalent on the date of the presentation of the bill of entry for home

consumption. He submitted that two different rates of duty cannot be applicable

on the same day. Hence, according to the submission, once a notification is

issued under the Customs Tariff Act, it will be a notification in force on that date

and apply with effect from the commencement of that date.

34 The decisions to which a reference has been made earlier, have construed

the expression “day” or, as the case may be, “date” in varying contexts ranging

46

PART H

from the law governing elections, insurance and limitation. A general position in

law has not been laid down that is divorced from subject, context and statute. In

interpreting the statute, the court is guided by the terms of its provisions, the

purpose underlying their adoption and the scheme which emerges from

interrelated provisions and the nature of the provision. The court in the present

case is interpreting the terms of a fiscal levy. The court here has to construe the

scheme and provisions of the Customs Act and their relationship with the

provisions of the Customs Tariff Act. The provision which falls for construction is

Section 15(1) of which both clauses (a) and (b) use the expression “on the date”.

In clause (a), the rate of duty and valuation is the rate and valuation in force on

the date on which a bill of entry is presented under Section 46 where goods are

entered for home consumption. Under Clause (b), where goods are cleared from

a warehouse under Section 68 it is the date on which a bill of entry for home

consumption is presented under that Section which is determinative of the rate

and valuation.

35 Mr Natraj is textually right when he emphasizes that Section 15 (1)

contains a reference to date and not time. But there are two responses to his line

of approaching the issue. First, the legislature does not always say everything on

the subject. When it enacts a law, every conceivable eventuality which may arise

in the future may not be present to the mind of the lawmaker. Legislative silences

create spaces for creativity. Between interstices of legislative spaces and

silences, the law is shaped by the robust application of common sense. Second,

regulatory governance is evolving in India as new technology replaces old and

47

PART H

outmoded ways of functioning. The virtual world of electronic filings was not on

the horizon when Parliament enacted the Customs Act in 1962. Yet the

Parliament has responded to the rapid changes which have been brought about

by the adoption of technology in governance. In the provisions of Section 17 and

Section 46, the impact of ICT-based governance has been recognized by the

legislature in providing for the presentation of bills of entry in the electronic form

on the customs automated EDI system. Precision, transparency and seamless

administration are key features of a system which adopts technology in pursuit of

efficiency. As we will explore in greater detail later in this judgment, technology

has enabled both administrators and citizens to know precisely when an

electronic record is uploaded. The considerations which Parliament had in its

view in providing for crucial amendments to the statutory scheme by moving from

manual to electronic forms of governance in the assessment of duties must not

be ignored. Tax administration must leave behind the culture of an age in which

the assessment of duty was wrought with delays, discretion, doubt and

sometimes, the dubious. The interpretation of the court must aid in establishing a

system which ensures certainty for citizens, ease of application and efficiency of

administration.

36 It is with these principles of interpretation in mind that we must evaluate

the submission which was urged by Mr Nataraj, on behalf of the Union, that upon

the issuance of a notification enhancing the rate of duty under Section 8A of the

Customs Tariff Act, the date on which the notification was issued will govern the

rate applicable to all bills of entry, including those which were presented before

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PART H

the enhanced rate was notified. The submission cannot be accepted for several

reasons. For one thing, it misses the significance of the expression “in force’

which has been employed in the prefatory part of Section 15(1). A notification

under Section 8A(1) of the Customs Tariff Act, even though it has the effect of

amending the First Schedule, takes effect prospectively. Section 8A does not

confer upon the notification an operation anterior to its making. In the language of

the law, its operation is prospective. To accept the submission of the ASG would

mean that the notification under Section 8A would have effect prior to its making,

something which Parliament has not incorporated by language or intent. If, as we

hold, the notification operates for the future beginning with the point of its

adoption, it cannot operate to displace the rate of duty which is applicable when a

bill of entry is presented for home consumption under Section 46.

The submission of the Union cannot be accepted in view of the provisions

contained in Section 46 for the presentation of a bill of entry for home

consumption in an electronic form on the customs automated system. While

making that provision, specifically by means of an amendment by Act 8 of 2011

and later by the Finance Act of 2018, Parliament used the expression “in such

form and manner as may be prescribed.” Regulation 4(2) of the Regulations of

2018 provides when the bill of entry shall be deemed to have been filed and selfassessment completed. The legal fiction which has been embodied in Regulation

4(2) emanates from the enabling provisions of Section 46. The provisions of

Sections 15(1)(a), 17, 46(1) and 47(2)(a) constitute one composite scheme. As a

result of the modalities prescribed for the electronic presentation of the bill of

entry and self-assessment after the entry of the electronic declaration on the

49

PART I

customs automated system, a bill of entry number is generated by the EDI

system for the declaration. Regulation 4(2) provides for a deeming fiction in

regard to the filing of the bill of entry and the completion of self-assessment. In

the context of these specific provisions, it would do violence to the overall

scheme of the statute to interpret the language of Section 15(1)(a) in the manner

in which it is sought to be interpreted by the ASG. The submission of the ASG,

simply put, is that because notification 5/2019 was issued on 16 February 2019,

the court must regardless of the time at which it was uploaded on the e-Gazette

treat it as being in existence with effect from midnight or 0000 hours on 16

February 2019. The consequence of this interpretation would be to do violence to

the language of Section 8A(1) of the Customs Tariff Act, and to disregard the

meaning, intent and purpose underlying the adoption of provisions in the

Customs Act in regard to the electronic filing of the bill of entry and the

completion of self-assessment.

I Notification under Section 8A of the Customs Tariff Act

37 The second and alternative limb of the submissions of the ASG postulates

that a notification under Section 8A(1) of the Customs Tariff Act is a legislative

act. The rates of duty applicable to different categories of goods imported into

India are set out in the First schedule to the Customs Tariff Act. A notification

under Section 8A(1) amends the First schedule. Hence, the submission is that

the schedule being a part of the Act, any amendment made to it by a notification

is an amendment to the Act. The ASG relies upon the decisions of this Court in

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PART I

Video Electronics (P) Ltd vs. State of Punjab18 and TN Electricity Board vs.

Status Spinning Mills Limited19 in support of the principle that subordinate

legislation validly made in pursuance of a legislative provision is to be read as if it

is a part of the enactment. Hence, for instance, an exemption granted under a

notification made in pursuance of a statutory provision must be construed as if it

is contained in the legislation.

38 In order to consider the submission, it is necessary at the outset to advert

to the provisions of the Customs Tariff Act. Under Section 8A, an emergency

power is vested in the Central Government to increase the import duties leviable

on an article included in the First schedule where it is satisfied that circumstances

rendering it necessary to take immediate action exist. Section 8A is in the

following terms:

“8A- Emergency Power of Central Government to increase

import dutiesWhere in respect of any article included in the First

Schedule, the Central Government is satisfied that the

import duty leviable thereon under section 12 of the

Customs Act, 1962 (52 of 1962) should be increased and

that circumstances exist which render it necessary to

take immediate action, it may, by notification in the

Official Gazette, direct an amendment of that Schedule to

be made so as to provide for an increase in the import

duty leviable on such article to such extent as it thinks

necessary:

Provided that the Central Government shall not issue any

notification under this subsection for substituting the rate of

import duty in respect of any article as specified by an earlier

notification issued under this sub-section by that Government

before such earlier notification has been approved with or

without modifications under sub-section (2).

18 (1990) 3 SCC 87

19 (2008) 7 SCC 353

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PART I

(2) The provisions of sub-sections (3) and (4) of section 7

shall apply to any notification issued under sub-section

(1) as they apply in relation to any notification increasing

duty issued under sub-section (2) of section 7.”

(emphasis supplied)

While Section 8A is an emergency power, Section 11A empowers the Central

government in public interest to amend the First schedule:

“(1) Where the Central Government is satisfied that it is

necessary so to do in the public interest, it may, by notification

in the Official Gazette, amend the First Schedule:

Provided that such amendment shall not alter or affect in any

manner the rates specified in that Schedule in respect of

goods at which duties of customs shall be leviable on the

goods under the Customs Act, 1962 (52 of 1962).”

Sub-section (2) of Section 8A specifies that the provisions of sub-sections (3) and

(4) of Section 7 shall apply to a notification which has been issued under subsection (1) of Section 8A. Sub-sections (3) and (4) of Section 7 are in the

following terms:

“(3) Every notification under sub-section (2), insofar as it

relates to increase of such duty, shall be laid before each

House of Parliament if it is sitting as soon as may be

after the issue of the notification, and if it is not sitting

within seven days of its re-assembly, and the Central

Government shall seek the approval of Parliament to the

notification by a resolution moved within a period of

fifteen days beginning with the day on which the

notification is so laid before the House of the People and

if Parliament makes any modification in the notification

or directs that the notification should cease to have

effect, the notification shall thereafter have effect only in

such modified form or be of no effect, as the case may

be, but without prejudice to the validity of anything

previously done thereunder.

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PART I

(4) For the removal of doubts, it is hereby declared that any

notification issued under sub-section (2), including any such

notification approved or modified under sub-section (3), may

be rescinded by the Central Government at any time by

notification in the Official Gazette.”

(emphasis supplied)

Under sub-section (3) of Section 7, the Central government is required to seek

the approval of Parliament to a notification within a period of fifteen days of its

being laid before the House of the People. Where Parliament is in session, the

notification has to be laid before the House as soon as may be after it is issued

and, if it is not, then within seven days of the legislature re-assembling. The

approval of parliament has to be sought within the specified period. The

notification would cease to have effect or take effect with modifications, if

Parliament so directs. In the case of a notification which has been issued under

Section 11A, sub-section (2) does not require the Central government to seek the

approval of Parliament to the notification by a resolution moved within a period of

fifteen days from the date on which the notification has been laid before the

House of the People. Sub-section (2) of Section 11A merely states that the

notification shall either cease to have effect or have effect in a modified form if it

is so directed by both the Houses of Parliament.

39 A notification which is issued in terms of the provisions of Sub-section (1)

of Section 8A is akin to the exercise of a delegated legislative power. The Central

government is empowered to issue a notification enhancing the rate of duty

where it is satisfied that immediate action is necessary to increase the rate of

customs duty on an article specified in the First schedule. The effect of the

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PART J

notification is to amend the First schedule to the Customs Tariff Act in respect of

the import duty leviable on an article under Section 12 of the Customs Act. In

issuing a notification under Sub-section (1) of Section 8A, the Central

government exercises power as a delegate of the legislature. The issue now to

be considered is whether the notification that was issued by the Central

government under Section 8A(1) at 20:46:58 hours on 16 February 2019 took

effect commencing from 0000 hours on that day. The ASG relied on the

provisions of the General Clauses Act in support of his submission that it did.

J General Clauses Act

40 Section 5(3) of the General Clauses Act 1897 provides thus:

“(3) Unless the contrary is expressed, a Central Act or

Regulation shall be construed as coming into operation

immediately on the expiration of the day preceding its

commencement.”

The above provision applies to a “Central Act” or “Regulation”. Hence, the above

provision makes it abundantly clear that it is only a ‘Central Act’ or ‘Regulation’

which comes into operation immediately on the expiration of the day preceding its

commencement. The expressions “Central Act” and “Regulation” are defined by

the statute. The expression “Central Act” is defined in Section 3(7) in the following

terms:

“(7) “Central Act” shall means an Act of Parliament, and shall

include—

(a) an Act of the Dominion Legislature or of the Indian

Legislature passed before the commencement of the

Constitution, and

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PART J

(b) an Act made before such commencement by the Governor

General in Council or the Governor General, acting in a

legislative capacity;”

The expression “Regulation” is defined in Section 3(50) as follows:

“(50) “Regulation” shall mean a Regulation made by the

President under article 240 of the Constitution and shall

include a Regulation made by the President under article 243

thereof and a Regulation made by the Central Government

under the Government of India Act, 1870, or the Government

of India Act, 1915, or the Government of India Act, 1935;”

The expression “commencement” is defined in Section 3(13) as follows:

“(13) “Commencement” used with reference to an Act or

Regulation, shall mean the day on which the Act or

Regulation comes into force.”

The definition of the expression “commencement’ is also relatable to a

“Central Act” or “Regulation”.

41 A notification issued by the Central government under sub-section (1) of

Section 8A does not fulfill the description of a Regulation under Section 3(50) of

the General Clauses Act. The expression is confined to specific species of

Regulations. The definition does not extend to all subordinate legislation or to

notifications issued by a delegate of the legislature acting in pursuance of a

statutory authority.

42 The expression “Central Act” is defined by using the expressions “shall

mean” and “shall include”. The use of these expressions indicates that the

definition is exhaustive. Insofar as is relevant, the expression ‘Central Act’ is

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PART J

defined to mean an Act of Parliament. A notification which has been issued under

Sub-section (1) of Section 8A of the Customs Tariff Act is not an Act of

Parliament. The notification has the effect of amending the First schedule. The

Central government as a delegate of the legislature has been entrusted with the

authority to issue such a notification. That does not make the notification an Act

of Parliament.

43 The above analysis is based on a textual reading of the two definitions –

those of a “Central Act” and “Regulation”. The precedent on the subject confirms

the analysis. This Court has held that the mere fact that a piece of delegated

legislation has been issued in exercise of a legislatively conferred power does not

bring the delegated legislation within the ambit of the phrase “Central Act” as

defined in Section 3(7) of the General Clauses Act.

44 In Kolhapur Canesugar Works Ltd. vs. Union of India (UOI)20

,

Constitution Bench of this Court had to decide, inter alia, if Rules 10 and 10-a of

the Central Excise Rules could be considered a ‘Central Act’ as defined in

Section 3(7) of the General Clauses Act. This decision of the Court, albeit

subsequently questioned for its interpretation of ‘repeal’ through omission [which

does not have a bearing on the issue at hand], was not assailed for its

interpretation of “Central Act” within the General Clauses Act. Speaking through

Justice D.P. Mohapatra, this Court answered the question of whether the

aforesaid Rules constituted a 'Central Act' in the negative, in the following terms:

“32. When the term Central Act or Regulation or Rule is used

in that Act reference has to be made to the definition of that

20 AIR 2000 SC 811.

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PART J

term in the statute. It is not possible nor permissible to give a

meaning to any of the terms different from the definition. It is

manifest that each term has a distinct and separate meaning

attributed to it for the purpose of the Act. Therefore, when the

question to be considered is whether a particular provision of

the Act applies in a case then the clear and unambiguous

language of that provision has to be given its true meaning

and import. The Full Bench has equated a 'rule' with 'statute'.

In our considered view this is impermissible in view of the

specific provisions in the Act. When the Legislature by clear

and unambiguous language has extended the provision of

Section 6 to cases of repeal of a 'Central Act' or 'Regulation',

it is not possible to apply the provision to a case of repeal of a

'Rule'. The position will not be different even if the rule has

been framed by virtue of the power vested under an

enactment; it remains a 'rule' and takes its colour from the

definition of the term in the Act (General Clauses Act).”

45 In Securities and Exchange Board of India vs. Magnum Equity

Services Ltd21, a two judge Bench of this Court considered whether the General

Clauses Act is applicable to the interpretation of the SEBI (Stock Brokers and

Sub-Brokers) Regulations, 1992. The Court observed that the Regulations were

framed by SEBI in exercise of the powers conferred on it by Section 30 of the

SEBI Act, 1992. Section 31 requires the rules and regulations to be laid before

Parliament. Justice Vikramajit Sen concluded as follows:

“12. The main contention raised by the learned Senior

Counsel for the appellant is based on the application of the

General Clauses Act, 1897 which under Section 13(2) states

that plural includes singular. However, before we consider

Section 13, we shall have to determine whether the General

Clauses Act itself is applicable to the SEBI (Stockbrokers and

Sub-Brokers) Regulations, 1992. Section 3 of the General

Clauses Act, 1897 states that the said Act is applicable to all

Central Acts and Regulations made after the commencement

of this Act. Further, the term “Central Act” has been defined

under sub-section (7) as an Act of Parliament, which includes

(a) an Act of the Dominion Legislature or of the Indian

21 (2015) 16 SCC 721

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PART J

Legislature passed before the commencement of the

Constitution, and (b) an Act made before such

commencement by the Governor General in Council or the

Governor General, acting in a legislative capacity. The SEBI

(Stockbrokers and Sub-Brokers) Regulations, 1992 are

issued by SEBI in exercise of the powers conferred on it

under Section 30 of the SEBI Act, 1992. Section 31 of the

SEBI Act, reproduced below for the facility of reference,

provides that the Rules and Regulations are to be laid before

Parliament:

“31. Rules and regulations to be laid before

Parliament.— Every rule and every regulation made

under this Act shall be laid, as soon as may be after it

is made, before each House of Parliament, while it is

in session, for a total period of thirty days which may

be comprised in one session or in two or more

successive sessions, and if, before the expiry of the

session immediately following the session or the

successive sessions aforesaid, both Houses agree in

making any modification in the rule or regulation or

both Houses agree that the rule or regulation should

not be made, the rule or regulation shall thereafter

have effect only in such modified form or be of no

effect, as the case may be; so, however, that any

such modification or annulment shall be without

prejudice to the validity of anything previously done

under that rule or regulation.”

13. Thus in light of the provisions of the SEBI Act, 1992 under

which the said Regulations have been issued, the latter do

not tantamount to a Central Act as defined Under Sub-section

(7) of the definition clause of The General Clauses Act, 1897.”

The Regulations framed under the SEBI Act were held not to fall within the

definition of a ‘Central Act’ contained in Section 3(7) of the General Clauses Act.

46 Notification 05/2019 was issued by the Central Government under the

delegated authority to increase emergency tariff duties under Section 8A of the

Customs Tariff Act, 1975. The notification has been issued in pursuance of a

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PART K

statutory power. The notification has the effect of enhancing the rate of duty

prescribed in the First Schedule to the Customs Tariff Act. That does not,

transform the notification which has been issued in pursuance of a statutory

authority into a ‘Central Act’.

K Information Technology Act, 2000

47 While enacting the Information Technology Act 2000, Parliament

envisioned a regime of electronic governance. The legislation recognizes that

information technology is a facilitative instrument for creating an efficient

framework for e-commerce. Providing the backdrop for Parliamentary

intervention, the Statement of Objects and Reasons underlying the enactment of

the legislation provides the rationale for the law:

“New communication systems and digital technology have

made dramatic changes in the way we live. A revolution is

occurring in the way people transact business. Businesses

and consumers are increasingly using computers to create,

transmit and store information in the electronic form instead of

traditional paper documents. Information stored in electronic

form has many advantages. It is cheaper, easier to store,

retrieve and speedier to communicate. Although people are

aware of these advantages, they are reluctant to conduct

business or conclude any transaction in the electronic form

due to lack of appropriate legal framework. The two principal

hurdles which stand in the way of facilitating electronic

commerce and electronic government are the requirements

as to writing and signature for legal recognition. At present

many legal provisions assume the existence of paper based

records and documents and records which should bear

signatures. The law of evidence is traditionally based upon

paper based records and oral testimony. Since electronic

commerce eliminates the need for paper-based transactions,

hence to facilitate e-commerce, the need for legal changes

have become an urgent necessity. International trade through

the medium of e-commerce is growing rapidly in the past few

years and many countries have switched over from traditional

paper based commerce to e-commerce.”

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48 Parliament recognized the need to bring about suitable amendments to

existing legislation to facilitate e-commerce, more so in light of India being a

signatory to the United Nations Commission on International Trade Law’s Model

Law on Electronic Commerce in 1996. It therefore proposed to provide legal

recognition of electronic records and digital signatures. This would, as the

Statement of Objects and Reasons indicate, “enable the conclusion of contracts

and the creation of rights and obligations through the electronic medium”.

Parliament envisaged the use and acceptance of electronic records and digital

signatures in governmental offices and agencies, to facilitate electronic

governance and to “make the citizens’ interaction with the governmental offices

hassle free”.

Bearing the legislative number of Act 21 of 2000, the law came into force on 17

October 2000. The long title to the legislation provides that it is:

“An Act to provide legal recognition for transactions carried

out by means of electronic data interchange and other means

of electronic communication, commonly referred to as

“electronic commerce”, which involve the use of alternatives

to paper-based methods of communication and storage of

information, to facilitate electronic filing of documents with the

Government agencies and further to amend the Indian Penal

Code, the Indian Evidence Act, 1872 , the Banker’s Book

Evidence Act, 1891 and the Reserve Bank of India Act, 1934

and for matters connected therewith or incidental thereto.”

Section 2(t) defines the expression ‘electronic record’:

“(t) ―electronic record means data, record or data generated,

image or sound stored, received or sent in an electronic form

or micro film or computer generated micro fiche”

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Chapter III is devoted specifically to electronic governance. Among its salient

provisions are those providing for:

(i) Legal recognition of electronic records (Section 4);

(ii) Legal recognition of electronic signatures (Section 5);

(iii) Use of electronic records and electronic signatures in government and

its agencies (Section 6);

(iv) Authorization by government to service providers to set-up, maintain

and upgrade computerized facilities (Section 6A); and

(v) Retention of electronic records (Section 7).

Sub-section 1 of Section 6 has a bearing on the issues raised in this case:

“6. Use of electronic records and electronic signatures in

Government and its agencies- (1) Where any law provides for

— (a) the filing of any form, application or any other document

with any office, authority, body or agency owned or controlled

by the appropriate Government in a particular manner;

(b) the issue or grant of any licence, permit, sanction or

approval by whatever name called in a particular manner;

(c) the receipt or payment of money in a particular manner,

then, notwithstanding anything contained in any other law for

the time being in force, such requirement shall be deemed to

have been satisfied if such filing, issue, grant, receipt or

payment, as the case may be, is effected by means of such

electronic form as may be prescribed by the appropriate

Government.”

Section 6A contemplates that for the “efficient delivery of services to the public

through electronic means”, government may authorize a service provider to set

up, maintain and upgrade computerized facilities and perform other services.

Section 7 provides legal support to the retention of records in the electronic form.

Where a law requires documents, information or records to be preserved, the

requirement is satisfied by preserving them in an electronic form, subject to the

fulfillment of conditions. One of the conditions stipulated by Section 7(1)(c) is that

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PART K

the details which facilitate the identification of the origin, destination, date and

time of dispatch or the receipt of the electronic record are available in the

electronic record. The date and time of receipt or of the dispatch of an electronic

record are crucial from this perspective to the maintenance of an electronic

record.

49 In exercise of its rule making power, the Central Government formulated

rules for electronic service delivery. Under these rules, called the Information

Technology (Electronic Service Delivery) Rules 2011, governmental authorities

must maintain time stamps of the creation of electronic records. Rule 5(1)

incorporates such a requirement in the following terms:

“5. Creation of repository of electronically signed electronic

records by Government Authorities.-

(1) All authorities that issue any license, permit, certificate,

sanction or approval electronically, shall create, archive

and maintain a repository of electronically signed

electronic records of such licenses, permits, certificates,

sanctions or approvals, as the case may be, online with

due timestamps of creation of these individual electronic

records.”

The Rules provide a procedure for making changes in the repository of

electronically signed electronic records, in Rule 6. Rule 6(2) indicates that the

person authorized to make a change must also electronically sign the change

and the time stamps of the original creation and modification of the electronic

record. Rule 6(2) reads thus:

“6. Procedure for making changes in a repository of

electronically signed electronic records.-

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(2) Any change effected to any record in a repository of

electronically signed electronic records and any addition or

deletion of a record from such repository shall be

electronically signed by the person who is authorized to make

such changes along with the time stamps of original creation

and modification times”

Digital signatures have contextual information including the date and time built

into them. Under the Digital Signature (End entity) Rules 2015, provisions for time

stamps for digital signatures are built into the legal regime under Rule 4(4) and, in

the context of a long term valid digital signature, in Rule 4(7).

Section 13 of the Information Technology Act 2000 contains provisions for the

time and place of the dispatch and receipt of electronic records. It reads as

follows:

“13. Time and place of dispatch and receipt of electronic

record.—

(1) Save as otherwise agreed to between the originator

and the addressee, the dispatch of an electronic record

occurs when it enters a computer resource outside the

control of the originator.

(2) Save as otherwise agreed between the originator and the

addressee, the time of receipt of an electronic record shall be

determined as follows, namely:—

(a) if the addressee has designated a computer resource for

the purpose of receiving electronic records,—

(i) receipt occurs at the time when the electronic record enters

the designated computer resource; or

(ii) if the electronic record is sent to a computer resource of

the addressee that is not the designated computer resource,

receipt occurs at the time when the electronic record is

retrieved by the addressee;

(b) if the addressee has not designated a computer resource

along with specified timings, if any, receipt occurs when the

electronic record enters the computer resource of the

addressee…..”

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(emphasis supplied)

The dispatch of a record occurs when it enters a computer resource outside the

control of the originator. The time of receipt of the electronic record is fixed by the

provisions of sub-section 2 of Section 13. When the addressee has designated a

computer resource, receipt occurs when the record enters the computer resource

so designated. Otherwise, where no computer resource is designated, the receipt

of the record is when it is retrieved by the addressee. These provisions have

been incorporated in the law to enable the dispatch and receipt of a record in the

electronic form to be defined with precision with reference to both- time and

place.

50 In the above context, it is to be noted that the rate of customs duty is

determined on the date on which the bill of entry for home consumption is

presented (Section 15). The presentation of the bill of entry has to be made

electronically (Section 46 read with the 2018 Regulations). The presentation is

required to be made on the customs automated system. The provisions in the

Customs Act for the electronic presentation of the bill of entry for home

consumption and for self-assessment have to be read in the context of Section

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PART L

13 of the Information Technology Act which recognizes “the dispatch of an

electronic record” and “the time of receipt of an electronic record”. The legal

regime envisaging the electronic presentation of records, such as the

presentation of a bill of entry, has been imparted precision as a result of the

enabling framework of the Information Technology Act under which these records

are maintained. The presentation of the bill of entry under Section 46 is made

electronically and is captured with time stamps in terms of the requirements of

the Information Technology Act read with Rule 5(1) of the Information Technology

(Electronic Service Delivery) Rules 2011.

L Effect of notifications issued in e-gazettes

51 Section 8 of the Information Technology Act, 2000 creates a legal basis for

the publication of laws through e-gazettes. It reads as follows:

“Section 8 - Publication of rule, regulation, etc., in Electronic

GazetteWhere any law provides that any rule, regulation, order, byelaw, notification or any other matter shall be published in the

Official Gazette, then, such requirement shall be deemed to

have been satisfied if such rule, regulation, order, bye-law,

notification or any other matter is published in the Official

Gazette or Electronic Gazette:

Provided that where any rule, regulation, order, by-law,

notification or any other matter is published in the Official

Gazette or Electronic Gazette, the date of publication shall be

deemed to be the date of the Gazette which was first

published in any form.”

52 On 30 September 2015, the Ministry of Urban Development issued an

Office Memorandum numbered No. O-17022/1/2015-PSP-l which discontinued

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the practice of physical printing and replaced it with the electronic gazette. The

notification, in relevant part, reads as follows:

“In compliance with the provisions of Section 8 of the

Information Technology Act, 2000, it has been decided in

consultation with Department of Legal Affairs to switch over to

exclusive e-publishing of the Government of India Gazette

Notification on its official website with effect from 01.10.2015

and to do away with the physical printing of Gazette

Notification. The date of publishing shall be the date of epublication on official website by way of electronic

gazette in respect of Gazette notification.”

(emphasis supplied)

53 Thus far, this Court has not had to confront the question as to whether the

shift from the analog to the digital for Gazette notifications has any bearing for

ascertaining when they come into force. The judgments which dealt with the

starting point for the enforceability of notifications were all concerned with

circumstances in which such publication took place in the physical gazette. We

are now required to determine if the shift to electronic gazettes has brought about

a change in this position.

54 The High Courts have begun offering guidance on this score. The Delhi

High Court in M.D. Overseas Industries vs. Union of India22, dealt with a

situation where the Director General of Foreign Trade issued two notifications

dated 25 August 2017 restricting the importation of gold, including gold coins.

Gold coins could no longer be imported freely and had to be imported in

accordance with a public notice issued in that behalf. The petitioners urged that

the restrictive regime created by these notifications was inapplicable to them

22 W.P. (C) 7838/2017 decided on 15 October 2019 (Delhi High Court)

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because the notifications, they contended, came into force only on 28 August,

2017, when they were published in the official gazette. The gold coins imported

by the petitioners, however, were dispatched on 25 August, 2017. Since the

notifications came into force three days later, they contended that these were

inapplicable to them. The notifications were electronically notified in the gazette.

55 The High Court upheld the Petitioner’s view that the notifications were

inapplicable to the petitioners after considering Section 8 of the Information

Technology Act, 2000 along with the Office Memorandum dated 30.9.2015. It

held:

“32. The endorsement on the electronic copy of the Gazette,

whereby the impugned Notification Nos. 24 and 25, dated

25th August, 2017, were notified, seen in juxtaposition with

Section 8 of the IT Act, and of the OM dated 30th September,

2015 supra, of the Ministry of Urban Development, makes it

clear that the impugned Notification Nos. 24 and 25, dated

25th August, 2017 were, in fact, electronically published in the

Official Gazette only at or after 10:47 p.m. on 28th August,

2017.

33. It has been conclusively held, by the Supreme Court, in a

catena of decisions - including Harla v. State of Rajasthan

[1952 (1) SCR 110], B.K. Srinivasan v. State of Karnataka

[AIR 1987 SC 1059] and U.O.I, v. Param Industries [(2016) 16

SCC 692] that, notifications would come into force on

their publication in the Official Gazette, i.e. in the present

case, with effect from the date and time when they were

electronically printed in the Gazette, which was at or after

10:47 p.m. on 28th August, 2017.”

(emphasis supplied)

56 Thus, the High Court regarded the time of publication as the relevant

marker for determining the enforceability of the notifications. The issue of

determining the starting point for the enforceability of a notification in the

electronic gazette was considered by the Andhra Pradesh High Court in Ruchi

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Soya Industries vs. Union of India.23 The petitioner entered into a contract with

its foreign supplier on 18 January 2008 for the import of 9,500 Metric Tons of

crude oil. The first consignment of 4000 metric tons was shipped by the supplier

on 6 February 2018 from Dubai. The petitioner filed two bills of entry for 2000

metric tons of crude oil on 1 March 2018. They were assessed that day and

levied with 30% customs duty and 10% social welfare surcharge. On the same

date, a notification raised the basic customs duty from 30 to 44%. The petitioner

filed four bills of entry for the remaining 2000 tons on 2 March 2018 and argued

that the revised rate was not applicable to it because the notification was

published in the electronic gazette only on 6 March 2018. The High Court agreed

with the petitioner and held that the revised notification would come into force

only after it was digitally signed by the competent official and uploaded and

published in the official gazette. The relevant excerpt from page 41 of the High

Court’s judgment is quoted below:

“….The notification was …published electronically on

6.3.2018. In view of the decision taken by the Government of

India in terms of Section 8 of the…Information Technology

Act, to avoid physical printing of Gazette notification to

publish the same exclusively by electronic mode, so as to

attribute knowledge to the public at large. The notification was

signed by Rakesh Sukul on 6.3.2018 at 19:15:13 + 05'30'.

When notification needs to be signed digitally and only when

the notification was uploaded and published in the Official

Gazette, the same is made available for public.”

57 The Madras High Court dealt with a similar situation in Ruchi Soya

Industries vs. Union of India24 and held that the decision of the A.P. High Court

23 W.P. No. 4533 and 4534 of 2019 decided on 28 September 2019 (Andhra Pradesh High Court)

24 W.P. No. 21207 of 2018 decided on 14 July 2020 (Madras High Court).

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noted above was applicable to the case before it. As a result, it allowed the writ

petition on the same terms and directed the Respondent to refund the enhanced

duty collected from the petitioner, along with IGST.

58 With the change in the manner of publishing gazette notifications from

analog to digital, the precise time when the gazette is published in the electronic

mode assumes significance. Notification 5/2019, which is akin to the exercise of

delegated legislative power, under the emergency power to notify and revise tariff

duty under Section 8A of the Customs Tariff Act, 1975, cannot operate

retrospectively, unless authorized by statute. In the era of the electronic

publication of gazette notifications and electronic filing of bills of entry, the revised

rate of import duty under the Notification 5/2019 applies to bills of entry presented

for home consumption after the notification was uploaded in the e-Gazette at

20:46:58 hours on 16 February 2019.

59 The impugned High Court judgement has relied on the decision of the

Karnataka High Court in Param Industries Ltd. vs. Union of India25, which was

confirmed by the decision of this Court in Union of India vs. Param Industries

Limited26 [“Param Industries”] In that case, the respondents were in the

business of importing and exporting edible oil. The respondents imported RBD

Palmolein which was cleared after payment of import duty of 85 per cent of its

value. The import duty was paid pursuant to a notification which was in existence

as on that date. A major quantity of the goods had been removed from the

warehouse after the payment of duty. The importer was, however, informed that

25 2002 (150) E.L.T. 3 (Kar)

26 (2016) 16 SCC 692

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by a notification dated 3 August 2001 (incidentally this was also the date the bill

of entry was filed and goods were cleared) the tariff value had been raised to

USD 372 per metric tonne and that the importer was liable to pay the difference

in the tariff which was paid on the basis of the earlier notification. The respondent

contested the demand on the ground that the notification raising the import duty

had not come into effect on 3 August 2001. The Division Bench of the High Court

held that the notification was not published on 3 August 2001 and must have

been Gazetted only after the following weekend namely on 6 August 2001 or

thereafter; the Gazette issued containing notification was offered for sale only

starting from 6 August 2001; and that the mere publication of the notification on

the website and the issuance of a letter to the Assistant Controller, Government

of India (Press) was not sufficient for the notification to be operational and

enforceable on 3 August 2001. This Court in appeal observed that according to

the High Court two conditions were mandatory for the notification to be brought

into force

(i) Due publication in the official Gazette; and

(ii) Offering the notification for sale on the date of its issue by the

Directorate of Publicity and Public Relations of the Board, New

Delhi.

This Court noted that, in their case, the second condition was not satisfied as the

notification was offered for sale only on 6 August 2001 as it was published in the

late evening hours of 3 August 2001 and the next two days were holidays.

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60 The decision of this Court in Param Industries was on the interpretation of

Section 14(2) of the Customs Act. However, prima facie, this decision appears to

be contrary to the principles previously elucidated by this Court in the context of

the Customs Act. In a two judge Bench decision of this Court in Pankaj Jain

Agencies vs. Union of India,27 [“Pankaj Jain”] the Court considered the

determination of the date when a notification dealing with an exemption would

come into force. The mode of publication for such notifications is prescribed

separately under Section 25 of the Customs Act. The Court held:

“17. In the present case indisputably the mode of publication

prescribed by Section 25(1) was complied with. The

notification was published in the Official Gazette on the 13-2-

1986. As to the effect of the publication in the Official Gazette,

this Court held [Srinivasan case[(1987) 1 SCC 658, 672 : AIR

1987 SC 1059, 1067] AIR at p. 1067 : SCC pp. 672-73, para

15]:

“Where the parent statute is silent, but the subordinate

legislation itself prescribes the manner of publication, such a

mode of publication may be sufficient, if reasonable. If the

subordinate legislation does not prescribe the mode of

publication or if the subordinate legislation prescribes a

plainly unreasonable mode of publication, it will take

effect only when it is published through the customarily

recognized official channel, namely, the Official Gazette

or some other reasonable mode of publication.”

18. We, therefore, see no substance in the contention that

notwithstanding the publication in the Official Gazette there

was yet a failure to make the law known and that, therefore,

the notification did not acquire the elements of operativeness

and enforceability.”

(emphasis supplied)

The principles recognized in Pankaj Jain were re-iterated and affirmed by a three

judge Bench of this Court in Union of India vs. Ganesh Das Bhojraj28 which

27 (1994) 5 SCC 198

28 (2000) 9 SCC 461.

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dealt with the enforceability of a notification under Section 25, prior to its

Amendment by Act 21 of 1998 which inserted Section 25(4) and the requirement

of ‘offering for sale’. The Court separately noted that the newly introduced

requirement of ‘offering of sale’ had prospective application. However, in the

factual scenario concerning a notification governed by the pre-amended act, it

upheld the principle that any additional requirement of publication can only be

introduced by statute and the Court is bound by the applicable statutory scheme

for determining enforceability. It noted:

“11. In our view, as noted above, in Pankaj Jain Agencies

case [(1994) 5 SCC 198] the Court directly dealt with a similar

contention and after relying upon the decision in the case

of Mayer Hans George [AIR 1965 SC 722 : (1965) 1 Cri LJ

641 : (1965) 1 SCR 123] rejected the same. That decision is

followed in I.T.C. Ltd. [(1996) 5 SCC 538] and other matters.

Hence, it is difficult to agree that the decision in Pankaj Jain

Agencies case [(1994) 5 SCC 198] was not helpful in deciding

the question dealt with by the Court. Section 25 of the

Customs Act empowers the Central Government to

exempt either absolutely or subject to such conditions,

from the whole or any part of the duty of customs

leviable thereon by a notification in the Official Gazette.

The said notification can be modified or cancelled. The

method and mode provided for grant of exemption or

withdrawal of exemption is issuance of notification in the

Official Gazette. For bringing the notification into

operation, the only requirement of the section is its

publication in the Official Gazette and no further

publication is contemplated. Additional requirement is that

under Section 159 such notification is required to be laid

before each House of Parliament for a period of thirty days as

prescribed therein. Hence, in our view Mayer Hans

George [AIR 1965 SC 722 : (1965) 1 Cri LJ 641 : (1965) 1

SCR 123] which is followed in Pankaj Jain Agencies

case [(1994) 5 SCC 198] represents the correct exposition

of law and the notification under Section 25 of the

Customs Act would come into operation as soon as it is

published in the Gazette of India i.e. the date of

publication of the Gazette. Apart from the prescribed

requirement under Section 25, the usual mode of

bringing into operation such notification followed since

years in this country is its publication in the Official

72

PART L

Gazette and there is no reason to depart from the same

by laying down additional requirement.”

(emphasis supplied)

61 Param Industries, in as much as it imposed an additional requirement of

‘offering for sale’, outside of the prescribed statutory scheme under S.14(2) of the

Customs Act, 1962, appears to be contrary to pre-existing principles. Having said

this, we do not wish to rule on the validity of Param Industries or its consequent

impact on decisions that have relied on it. In the present judgment it is not

necessary to take recourse to the line of reasoning in Param Industries. The

situation at hand, operates on a landscape which is significantly altered by the

regulatory regime in the electronic age where, both – uploading of notifications in

the e-gazette and filing of bills of entry- are in the electronic form. As we have

previously noted, Notification 5/2019 was uploaded in the e-gazette at a specific

time and date and cannot apply to bills of entry which were presented on the

customs automated EDI system prior to it, attracting the legal fiction set out in

Regulation 4(2) of the 2018 Regulations. Therefore, Param Industries does not

have any bearing on the case at hand.

73

PART M

M Retrospectivity

62 Section 8A of the Customs Tariff Act confers an emergency power upon the

Central government to increase import duties “in respect of any article included in

the first schedule”. By the notification dated 16 February 2019, the Union Ministry

of Finance in the Department of Revenue introduced a distinct tariff item – 980 60

000 - encompassing “all goods originating in or exported from the Islamic

Republic of Pakistan” for which a rate of duty of 200 per cent has been

prescribed. The exercise of the power under Section 8A is contingent on the

satisfaction of the Central government that (i) the duty on any article in the first

schedule should be increased; and (ii) that circumstances exist which render it

necessary to take immediate action. The Central government in the exercise of

this power may by a notification in the official gazette direct an amendment of the

schedule to be made “so as to provide for an increase in the import duty leviable

on such article to such extent as it thinks necessary”. Section 8A does not contain

language indicative of a legislative intent to authorize the Central government to

relate back the exercise of the power to a period prior to its exercise. The

exercise of the power under Section 8A (2) is governed by the prescriptions

contained in sub-sections (3) and (4) of Section 7. The conferment of the power

has not been made retrospective either expressly or by necessary implication.

63 Section 8A enables the Central government to increase the rate of duty on

an article in the first schedule in emergent situations. The notification dated 16

February 2019 adds a new entry altogether. Such an exercise may well be

regarded as relatable to the provisions of Section 11A. Section 11A confers a

power on the Central Government to amend the First schedule in public interest.

74

PART M

Section 8A on the other hand contemplates an increase in duty on an article

contained in the First schedule. Notification 5/2019 introduces a new tariff entry to

provide for a duty of 200% on all articles originating in or exported from Pakistan.

However, this aspect of the matter need not be explored further for the reason

that neither before the High Court, nor before this Court, was the challenge to the

vires of the notification pressed during the course of the submissions. The legal

position which needs emphasis is that the entrustment of the power to issue a

notification enhancing the rate of duty under Section 8A is not accompanied by a

statutory entrustment of authority to the Central government to exercise it with

retrospective effect. An enhancement of the rate of duty pursuant to the exercise

of power under Section 8A can only be prospective.

64 Parliament and the state legislatures are entrusted with the power to enact

legislation under Articles 245 and 246 of the Constitution. Parliament and the

state legislatures possess the plenary power to enact legislation, with prospective

and retrospective effect, subject to due observance of constitutional

requirements. A notification issued by the government pursuant to the conferment

of statutory power is distinct from an act of the legislature. Administrative

notifications, even when they are issued in pursuance of an enabling statutory

framework, are subject to the statute. Delegated legislation does not lose its

character even when it has the same force and effect as if it is contained in the

statute. This is a settled position of law. In a decision which was rendered in 1961

by a Constitution Bench of this Court in Chief Inspector of Mines vs. Lala

75

PART M

Karam Chand Thapar29, the principle of law was formulated in the following

terms:

“20. The true position appears to be that the rules and

regulations do not lose their character as rules and

regulations, even though they are to be of the same effect as

if contained in the Act. They continue to be rules subordinate

to the Act, and though for certain purposes, including the

purpose of construction, they are to be treated as if contained

in the Act, their true nature as subordinate rule is not lost….”

In K I Shepard vs. Union of India30, a two judge Bench of this Court held that the

power to frame a scheme under Section 45 of the Banking Regulation Act 1949

was not legislative in character but an administrative function. This Court

observed:

“9…But is the scheme-making process legislative? Power has

been conferred on the RBI in certain situations to take steps

for applying to the Central Government for an order of

moratorium and during the period of moratorium to propose

either reconstruction or amalgamation of the banking

company. A scheme for the purposes contemplated has to be

framed by RBI and placed before the Central Government for

sanction. Power has been vested in the Central Government

in terms of what is ordinarily known as a Henry VIII clause for

making orders for removal of difficulties. Section 45(11)

requires that copies of the schemes as also such orders

made by the Central Government are to be placed before

both Houses of Parliament. We do not think this requirement

makes the exercise in regard to schemes a legislative

process.”

The above decision was distinguished in New Bank of India Employees’ Union

vs. Union of India31 [“New Bank of India”] where the court held that a scheme

framed under Section 9 of the Banking Companies (Acquisition and Transfer of

29 AIR 1961 SC 838

30 (1987) 4 SCC 431

31 (1996) 8 SCC 407

76

PART M

Undertakings) Act 1980 stands on a distinct footing of being a legislative and not

an administrative function. The court held that the question was not of much

relevance in view of its conclusions on the main issues presented for decision.

Yet, it considered the question and laid emphasis on the authority entrusted to

Parliament to consider, within 30 days, to agree/modify/arrive at any decision with

regards to the scheme, only thereafter was the scheme was to have effect. These

requirements, qualitatively distinguished from a requirement of mere ‘laying’

under Section 45 of the Banking Regulation Act 1949, were pivotal in the court’s

view that a scheme under the 1980 Act has a legislative character. Mr Natraj

sought to emphasize a similar argument, by placing reliance on the provisions of

sub-sections (3) and (4) of Section 7 which are made applicable by reason of

sub-section (2) of section 8A. However, in the absence of a sine qua non for

parliamentary sanction before the notification is enforceable, the decision of New

Bank of India provides little anchor. For the purpose of the present decision the

point which needs emphasis is that in empowering the Central Government to

exercise power under Section 8A of the Customs Tariff Act, Parliament has not

either expressly or by necessary implication indicated that a notification once

issued will have force and effect anterior in time. The provisions of sub-sections

(3) and (4) of Section 7 of the Customs Tariff Act bring to bear legislative

oversight and supervision over the power which is entrusted to the Central

Government under Section 8A. That however does not lead to the inference that

a notification under Section 8A has retrospective effect. Plainly, a notification

enhancing the rate of duty under Section 8A has prospective effect.

77

PART M

A rule framed by the delegate of the legislature does not have retrospective effect

unless the statutory provision under which it is framed allows retrospectivity either

by the use of specific words to that effect or by necessary implication. In Hukum

Chand vs. Union of India32, a three judge Bench of this Court held that:

“8…The extent and amplitude of the rule-making power would

depend upon and be governed by the language of the

section. If a particular rule were not to fall within the ambit and

purview of the section, the Central Government in such an

event would have no power to make that rule. Likewise, if

there was nothing in the language of Section 40 to empower

the Central Government either expressly or by necessary

implication, to make a rule retroactively, the Central

Government would be acting in excess of its power if it gave

retrospective effect to any rule. The underlying principle is

that unlike Sovereign Legislature which has power to

enact laws with retrospective operation, authority vested

with the power of making subordinate legislation has to

act within the limits of its power and cannot transgress

the same. The initial difference between subordinate

legislation and the statute laws lies in the fact that a

subordinate law-making body is bound by the terms of

its delegated or derived authority and that Court of law,

as a general rule, will not give effect to the rules, thus

made, unless satisfied that all the conditions precedent

to the validity of the rules have been fulfilled.”

(emphasis supplied)

65 The distinction between the plenary power which is entrusted to Parliament

and the state legislatures to enact legislation with both prospective and

retrospective effect, and the power entrusted to a delegate of the legislature to

frame subordinate legislation has been maintained in a consistent line of

precedent of this Court. In Regional Transport Officer, Chittoor vs. Associated

Transport Madras (P)33, Justice V.R. Krishna Iyer speaking for a two judge

Bench of this Court with his characteristic eloquence observed:

32 (1972) 2 SCC 601

33 (1980) 4 SCC 597

78

PART M

“4. The legislature has no doubt a plenary power in the matter

of enactment of statutes and can itself make retrospective

laws subject, of course, to the constitutional limitations. But it

is trite law that a delegate cannot exercise the same power

unless there is special conferment thereof to be spelled out

from the express words of the delegation or by compelling

implication. In the present case the power under Section 4(1)

does not indicate either alternative…...”

The Court held that the fact that the rules had been framed in pursuance of a

resolution passed by the legislature or that they have to be placed on the table of

the legislative body would not lead to an inference that the legislature had

authorized the framing of subordinate legislation with retrospective effect:

“4…The mere fact that the rules framed had to be placed on

the table of the legislature was not enough, in the absence of

a wider power in the section, to enable the State Government

to make retrospective rules. The whole purpose of laying on

the table of the legislature the rules framed by the State

Government is different and the effect of any one of the three

alternative modes of so placing the rules has been explained

by this Court in Hukam Chand v. Union of India [(1972) 2

SCC 601, 606 : (1973) 1 SCR 896, 902].”

This precisely is the principle which applies in construing whether the power

which is conferred by Section 8A of the Customs Tariff Act is retrospective. The

provisions of sub-sections (3) and (4) of Section 7, which are made applicable by

sub-section (2) of Section 8A, are to ensure Parliamentary oversight. But that

does not enable the Central Government to exercise the power under section 8A

with retrospective effect.

In Federation of Indian Minerals Industries vs. Union of India34, a three judge

Bench of this Court formulated the principles on the subject. Justice Madan B

34 (2017) 16 SCC 186

79

PART M

Lokur observed that the power to frame subordinate legislation is not

retrospective unless it is authorized expressly or by necessary implication by the

parent statute. The Court observed:

“26…The relevant principles are:

(i) The Central Government or the State Government (or any

other authority) cannot make a subordinate legislation having

retrospective effect unless the parent statute, expressly or by

necessary implication, authorises it to do so. [Hukam

Chand v. Union of India [Hukam Chand v. Union of India,

(1972) 2 SCC 601] and Mahabir Vegetable Oils (P)

Ltd. v. State of Haryana [Mahabir Vegetable Oils (P)

Ltd. v. State of Haryana, (2006) 3 SCC 620] ].

(ii) Delegated legislation is ordinarily prospective in nature

and a right or a liability created for the first time cannot be

given retrospective effect. (Panchi Devi v. State of

Rajasthan [Panchi Devi v. State of Rajasthan, (2009) 2 SCC

589 : (2009) 1 SCC (L&S) 408] )

(iii) As regards a subordinate legislation concerning a fiscal

statute, it would not be proper to hold that in the absence of

an express provision a delegated authority can impose a tax

or a fee. There is no scope or any room for intendment in

respect of a compulsory exaction from a citizen. [Ahmedabad

Urban Dev. Authority v. Sharadkumar Jayantikumar

Pasawalla [Ahmedabad Urban Dev. Authority v. Sharadkumar

Jayantikumar Pasawalla, (1992) 3 SCC 285] and State of

Rajasthan v. Basant Agrotech (India) Ltd. [State of

Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 SCC 1]”

80

PART N

The judgment of Justice Dipak Misra (as he then was) speaking for a two judge

Bench decision in State of Rajasthan vs. Basant Agrotech (India) Ltd35 adopts

the same position.

N Summation

66 The imposition of a tax encompasses three stages. The locus classicus on

the subject is embodied in the dictum of Lord Dunedin in Whitney vs.

Commissioners of Inland Revenue36 which has been consistently applied in the

decisions of this court. There is, first, the declaration of liability which determines

“what persons in respect of what property are liable”. The second is the stage of

assessment. Liability, it is well settled, does not depend on assessment since exhypothesi, that has already been fixed. Assessment particularizes the exact sum

which a person is liable to pay. Third (and the last) are the methods of recovery if

a person who is taxed does not voluntarily pay. (See in this context the decisions

of the Federal Court in Chatturam v. CIT, Bihar37 and of this Court in A V

Fernandez vs. State of Kerala38 and Deputy CTO vs. Sha Sukraj Peerajee39

.

67 In the present case the twin conditions of Section 15 stood determined

prior to the issuance of Notification 5/2019 on 16 February 2019 at 20:46:58

hours. The rate of duty was determined by the presentation of the bills of entry for

home consumption in the electronic form under Section 46. Self-assessment was

on the basis of rate of duty which was in force on the date and at the time of

35 (2013) 15 SCC 1

36 (1926) AC 37 at 52.

37 (1947) FCR 116 at 126

38 1957 SCR 837 at para 39

39 (1967) 3 SCR 661 at para 5

81

PART N

presentation of the bills of entry for home consumption. This could not have been

altered in the purported exercise of the power of re-assessment under Section 17

or at the time of the clearance of the goods for home consumption under Section

47. The rate of duty which was applicable was crystallized at the time and on the

date of the presentation of the bills of entry in terms of the provisions of Section

15 read with Regulation 4(2) of the Regulations of 2018. The power of reassessment under Section 17(4) could not have been exercised since this is not

a case where there was an incorrect self-assessment of duty. The duty was

correctly assessed at the time of self-assessment in terms of the duty which was

in force on that date and at the time. The subsequent publication of the

notification bearing 5/2019 did not furnish a valid basis for re-assessment.

68 For the above reasons, we have come to the conclusion that there is no

merit in the appeals. The appeals shall stand dismissed. There shall be no order

as to costs.

69 Pending application(s), if any, stands disposed of.

…………...…...….......………………........J.

[Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J.

 [Indu Malhotra]

New Delhi;

September 23, 2020.

82

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2020

(@ S.L.P.(CIVIL)No. 3860 of 2020)

UNION OF INDIA AND OTHERS ... APPELLANT(S)

VERSUS

M/S. G.S. CHATHA RICE MILLS

AND ANOTHER ... RESPONDENT(S)

WITH

CONNECTED MATTERS

J U D G M E N T

K.M. JOSEPH, J.

1. Does a notification under Section 8A of the

Customs Tariff Act, 1975 increasing the import duty

published late in the evening of 16th Feb 2019, date

back to the midnight of the previous day? Does a day

include its fractions? While I agree with my esteemed

and learned brother in his erudite judgment that the

appeals be dismissed, having regard to the questions

1

involved, I have written the following separate

opinion:

2. Following the terror attack at Pulwama on

14.02.2019, the Government of India published a

Notification on 16.02.2019 (hereinafter referred to

as ‘the Notification’) purporting to be in exercise

of powers under Section 8A(1) of the Customs Tariff

Act, 1975 (hereinafter referred to as ‘the Tariff

Act’, for short). By the same, the First Schedule to

the Tariff Act, 1975 came to be amended in the

following manner:

“In the First Schedule to the Customs

Tariff Act, in Section XXI, in Chapter 98,

after tariff item 9805 90 00 and the

entries relating thereto, the following

tariff item and entries shall be inserted,

namely:-

(1) (2) (3) (4) (5

)

“9806

00 00

All goods

originatin

g in or

exported

from the

Islamic

Republic

of

- 200% -“

.

2

Pakistan.

3. It came to be published in the Gazette at

20:46:58 hrs. on 16.2.2019.

4. On the same day, i.e., on 16.02.2019, the

respondents in the Appeals, who were the Writ

Petitioners before the High Court, filed Bills of

Entry under the Customs Act, 1962 in respect of goods

imported from Pakistan. In fact, there was an

agreement between India and Pakistan, both being

SAARC Countries, under which, duty was to be levied

on the imports from Pakistan at concessional rates,

in those cases where imports were exigible to any

duty at all. The goods which were subject matter of

import, had also arrived in the Customs Station and

as noticed, during the course of the working hours on

16.02.2019 and well before the time of the

Notification hereinbefore adverted to, the Bills of

Entry came to be presented. The duty came to be selfassessed by the respondents. It is, thereafter, that

taking inspiration from the hefty increase in duty

effected under the Notification the Writ Petitioners

3

came to be faced with reassessment proceedings. It is

accordingly that they approached the High Court and

filed Writ Petitions wherein the prayer may be

noticed in Writ Petition No. 18460 of 2019 as

follows:

“a) Writ in the nature of

certiorari/mandamus or any other

appropriate writ for quashing of the

assessment order passed in the bill

of entry no. 2083178 dated 16.02.2019

(Annexure-P5) being illegal

arbitrary, against the principles of

natural justice and in violation to

the provisions of article 14 & 19 of

the Constitution of India and against

the provisions of Section 128 & 129

of the Customs Act, 1962;

b) Writ in the nature of

certiorari/mandamus quashing the

notification no. 05/2019-cus dated

16.02.2019 (Annexure-P7) being

prospective and in contravention to

the Notification no. 50/2017-cus.

dated 30.06.2017 granting benefit of

customs duty over and above NIL% as

well as section 4 & 11 of the Customs

Tariff act, 1975,

c) Writ in the nature of certiorari/

mandamus directing the Respondent

No.3 to issue detention memo in terms

of Regulation 6(1)(1) of the Customs

Act, 1962 and further directing the

Respondent No. 4 to release the goods

without demanding any ground rent.

4

d) Writ in the nature of certiorari/

mandamus restraining the respondent

no.4 for conducting auction of the

goods.

5. It is these Writ Petitions which have been

allowed by the High Court.

6. The High Court has found that in the Scheme of

the Customs Act read with the Tariff Act, the rate of

duty is to be determined with reference to two

definite indicia, viz., the date of presentation of

the Bills of Entry and the movement of goods across

the border and availability of the same within the

Customs Station. Present these two aspects, the law

enables the importer to demand that payment of the

duty be with reference to the date of presentation of

the Bills of Entry. The High Court did not consider

the challenge to the Notification on the basis of the

stand taken by the respondents and confined its

reasoning to the aforesaid aspect which I have

indicated. The Court took the view that the

Notification which came to be published late in the

evening on 16.02.2019 could not alter the destiny of

5

the Writ Petitioners cases as regards the rate of

duty.

7. We have heard Shri K.M. Nataraj, learned

Additional Solicitor General, appearing on behalf of

the appellants, Shri P.S. Narsimha, learned Senior

Counsel, appearing on behalf of the Writ Petitioners.

CONTENTIONS OF THE APPELLANTS

8. Shri K.M. Nataraj, learned Additional Solicitor

General would contend that the Notification issued

under Section 8A of the Tariff Act following the

extraordinary circumstances surrounding the Pulwama

terror attack, the rate of duty came to be increased

by Notification dated 16.02.2019. The Notification

would have effect in respect of all the Bills of

Entry which came to be filed/presented on that day.

To buttress his submissions, he also sought to draw

support from Section 5(3) of the General Clauses Act,

1897. He would point out that the Notification would,

therefore, have effect from the expiry of the

previous day. That is, it is his contention that

6

though it is issued late in the evening on

16.02.2019, since the previous day, viz., 15.02.2019

expired at midnight, the Notification must be treated

as born and alive from the first tick of time past

the midnight of 15.02.2019. He also drew our

attention to the Scheme of the Customs Act, 1962

otherwise. With the assistance of Sections 12, 15, 46

and 47, he sought to contend that the High Court fell

into error in not recognizing that the preferring of

the Bills of the Entry by the respondents, could not

detract from the applicability of the increased rate

of duty under the Notification.

9. The principal argument of the Union of India is

that these cases must be decided based on the

provision of Section 15 of the Customs Act.

Expatiating the argument of the Union of India Shri

K.M. Nataraj, learned counsel for the Union of Indiaappellant would contend that there is no challenge to

the validity of Section 15 of the Customs Act. The

said provision must be taken as it is and applied.

The result would then be inevitable that the

notification in question which no doubt was published

7

late in the evening on 16.02.2019, fixed the

increased rate of duty on all goods imported from

Pakistan and it was undoubtedly to have effect from

that day onwards. In other words, since Section 15

of the Act contemplates that the rate of duty to be

the rate in force during the day, and as the

Notification was published on 16.02.2019, the day

16.02.2019 was not to be excluded. It was, in other

words, to have operation throughout the day,

16.02.2019. It is contended that there cannot be two

rates of duty which are at loggerheads with each

other on a single day. The time of the day at which

the notification was actually published, would pale

into insignificance in answering the question as to

whether the said notification which is of the kind

involved in this case was to hold sway during the

course of the whole day. He urges us to notice that

Section 15 of the Customs Act does not allude to the

time of the day but only refers to the day. He would

further contend that by virtue of the notification,

the rate in force within the meaning of Section 15

from the mid night of 15.02.2019 was the rate fixed

8

under the notification in respect of the goods

governed by the same. Any other interpretation would

involve rewriting of Section 15 and the

amendment of the provision which is plainly

impermissible. He also no doubt points that the

authorities have rightfully embarked upon

reassessment under the Act upon noticing that the

goods were assessed with duty at a rate which was not

in force, namely, the rates which stood supplanted by

the notification issued under Section 8A on

16.02.2019. In this regard he drew inspiration from

the provisions of Section 17(4) of the Act. In

particular, he pointed out that the expression

“otherwise” is capable of encompassing the situation

existing in the facts of these cases. He would also

point out that the Court may notice that an order has

not been passed under Section 47 of the Act

permitting clearance of the goods for home

consumption. As soon as the factum of the

notification having bearing came to light,

proceedings for re-assessment were resorted to and no

case was made out for the High Court to interfere

9

with the action of the authorities in purporting to

apply the correct rate of duty within the meaning of

Section 15 of the Act.

10. Per contra, Shri P.S. Narsimha, learned Senior

Counsel for the respondent-Writ Petitioners,

countered the appellants submissions by pointing out

as follows:

Under Section 12 of the Customs Act,

imports attract customs duty as is fixed

under the Tariff Act. Section 15 of the

Customs Act, however, determines the date

with reference to which the rate of duty as

provided in the Tariff Act is to apply. Still

further and crucially, this exercise is to be

accomplished with reference to the date of

presentation of the Bills of Entry as

provided in Section 46 of the Customs Act. He

would, in fact, submit that under the Customs

Act, a perusal of Sections 15 and 16, would

show that there are four different situations

10

contemplated. Under Section 15, which deals

with rate of duty payable on imports, in a

case where the Bills of Entry is presented

for home consumption under Section 46, the

rate of duty is to apply with reference to be

date of presentation of the Bills of Entry.

In the case where the goods are cleared for

being warehoused under Section 68, again the

duty is to be paid at the rate with reference

to the presentation of the Bills of Entry for

home consumption under Section 68. The two

other circumstances pertain to exports. In

the case of goods entered for export from

India, the rate of duty is fixed with

reference to the date on which the proper

officer makes an order permitting clearance

and loading of goods for exportation under

Section 51. In any other case, which is the

fourth Category, the duty is fixed with

reference to the date of payment of duty. He

would draw our attention to the

Electronic Filing of Bills of Entry

11

Regulations, 2018. In particular, he would

draw our attention to Regulation 4 of the

said Regulations. He would point out that

Regulation 4, of the said Regulations, makes

it clear that once the Bills of Entry is

filed electronically and the event takes

place, which under law determines the point

of time with reference to which the rate of

duty is to be imposed, the position is

unalterable. He would submit that neither is

the rate of duty dependent on the date of

payment of duty nor is it based on Entry

Inward. An order is contemplated under

Section 47 of the Customs Act for clearing

the goods, which contemplates payment of duty

as a condition precedent for such an order.

This is irrelevant. He would submit that in

the present-day world of international trade,

innumerable transactions take place at

different points of time during the course of

the day. The Law Giver has not contemplated

the reopening of a transaction, which in the

12

eye of law, is a closed chapter. He would

point out that the court must bear in mind

that it is dealing with a law which visits a

person with a tax. The point of time is

transparent and declared through the Scheme

of the Customs Act read with the Tariff Act.

It would be wholly impermissible to inflict

imports which have been visited with the duty

in accordance with the law, with the rates of

duty, which was not prevalent at the relevant

time. The Notification could have only

prospective operation. In fact, Shri Kapoor,

the learned Counsel, who appeared in the High

Court for the Writ Petitioners, pointed out

that after the Notification was issued late

in the evening, the system did not accept

further electronic declaration of Bills of

Entry as it was contemplated that such Bills

of Entry would attract the higher duty.

11. Mr. P.S. Narsimha, learned Senior Counsel, points

out that Customs Act contemplates self-assessment.

13

He drew our attention to Section 17 in this regard.

It is the further case of the writ petitioners that

based on the self-assessment, the system generated

details which approved of the self-assessment. After

the matter stood concluded in terms of the Act, the

transaction could not be revisited on the strength of

the Notification issued under Section 8A, runs the

argument. It is pointed out that the Notification,

issued under Section 8A, may be akin to delegated

legislation. Even proceeding on the basis that it

is delegated legislation, it can have only

prospective operation. Section 8A of the Tariff Act,

under which the Notification was issued, did not

empower the author of the Notification to issue the

Notification with retrospective effect. In answer to

a query by the Court as to what would have been the

effect of the notification which was issued at

10.00a.m. at 16.02.2019, instead of 20:46:58 hrs., at

which time, it was in fact issued and if the Bill of

Entry is presented after 10.00 a.m., Mr. P.S.

Narsimha pointed out that it would be the

Notification which was issued on 10.00 a.m., which

14

would be the Notification in force, and therefore,

the increased duty may have been payable. Mr. P.S.

Narsimha has also, no doubt, a contention that the

Notification issued under Section 8A is illegal for

the reason that what is contemplated under Section 8A

is the increase of the rate of duty in respect of

items which are already included in the first

schedule of the Tariff Act whereas a perusal of the

Notification would show that a new entry has been

made and the rate of duty has been provided therein,

viz., the rate of duty of all goods emanating from

Islamic Republic of Pakistan was increased to 200 per

cent. But this line of argument was not pursued.

12. Both sides referred us exhaustively to case law.

ANALYSIS

13. The Customs Act is a consolidating Act. It is

intended, inter alia, to deal with the menace of

smuggling. It contains various sanctions. It also

provides for the levy of Customs duty on import and

export. It is a law which provides revenue to the

15

State. It is also an important tool in the hands of

the nation to arrange its economic affairs to make it

best suited to the welfare of the people otherwise.

Indisputably, the charging Section is Section 12.

The taxable event is import into or export of goods

from India. Ordinarily, the Tariff Act provides the

rates at which duty is imposed on imports and

exports. There is no dispute that India and Pakistan

being S.A.A.R.C. Countries they were parties to an

agreement under which the trade between the countries

was subjected only to duty on concessional rates. It

is while so, following the unfortunate incident of

Pulwama that the Government of India in exercise of

its powers under Section 8A of the Tariff Act decided

to increase the rate of import duty on all goods in

the manner done. The Notification was issued on

16.02.2019. It was published at about 20:46:58 hrs.

In the meantime, during the course of the day, the

writ petitioners before us who imported goods had

filed Bills of Entry electronically. The goods were

present in the Customs Station. To be more correct,

the Bills were presented and self-assessment was

16

undertaken. It is thereafter that late in the

evening as a bolt from the blue, as it were, the

notification came to be issued under Section 8A of

the Tariff Act. The questions which arise for the

consideration of this Court is articulated as

follows:

1. What is the nature of the Notification? Is it

a species of subordinate legislation?

2. If it is subordinate legislation, when did it

commence? What is the scheme of the Customs

Act as regards the rate of duty on imports and

the power of assessment? Was the Notification

in force on 16.02.2019 so that it would cover

all the transactions countenanced by the Bills

of Entry which were duly presented during the

office hours on 16.02.2019? What constitutes a

day under Section 15 of the Customs Act?

3. Whether the Notification is covered by Section

5(3) of the General Clauses Act?

17

4. Whether the appellants were justified in

resorting to re-assessment in these cases?

THE TARIFF ACT AND WHETHER THE NOTIFICATION IS A FORM

OF DELEGATED LEGISLATION

14. It is apposite that the working of the Tariff Act

is unravelled. The rates of duty under the Customs

Act are to be provided as per the entries in the

First and Second Schedule. Section 2 of the Tariff

Act, reads as follows:

“2. Duties specified in the Schedules to

be levied. - The rates at which duties of

customs shall be levied under the Customs

Act, 1962 (52 of 1962), are specified in

the First and Second Schedules.”

15. In other words, the rate of duty must be one

which is provided by Parliament. It may require an

amendment to the Tariff Act to increase or decrease

the rate of duty under Section 2. Section 11A

contemplates power with the Central Government to

amend the First Schedule. It cannot be, in the region

of doubt, that the exercise of power under Section

11A would amount to exercise of delegated

legislation. Section 11A(2) stipulates the procedure

18

to be adopted after the Notification is issued. It

has to be placed before each House of Parliament and

the further procedures are as provided therein, which

includes the power to modify the Notification. The

proviso, however, makes it clear that the exercise of

power under Section 11A, to amend the First Schedule,

will not involve or amount to an increase in the

rates which are specified in the First Schedule in

regard to duties of customs leviable under the

Customs Act. In other words, barring the rate of

customs duty, the contents of the First Schedule can

be amended by the Central Government under Section

11A. Resultantly, Section 11A does not confer upon

the Central Government, the power to increase the

rate of duty under the Customs Act. The rate of duty,

in other words, ordinarily falls within the province

of Parliament, and it is Parliament alone, which can

increase or decrease the rate of duty. However, an

exception has been carved out under Section 8A to

change the rate of duty under the Schedule to the

Tariff Act. It is an emergency power vested with the

Central Government. The emergency power vested with

19

the Central Government is to change the import duty

and the change is limited to an increase in the rate

of import duty. The condition requisite is, no doubt,

that circumstances exist which render it necessary to

take immediate action for providing for an increase

in the import duty. Section 8A, in fact, does not

contemplate the power to amend the First Schedule.

The power under Section 8A is confined to any article

which is already included in the First Schedule.

Undoubtedly, it is the same Authority, viz., the

Central Government, which stands clothed with the

power to amend the First Schedule under Section 11A.

The words “circumstances” exists which render it

necessary to take immediate action in Section 8A

makes it clear that the power to increase the rate of

import duty is ordinarily a power to be exercised by

the Parliament by a process of amending the First

Schedule to the Tariff Act. It is only in emergent

circumstances where the delegate of the Legislature,

viz. the Central Government, considers it necessary

to take immediate action that is the process of

amending the Act or rather the Schedule to the Act by

20

the Parliament, would take time, the same is sought

to be obviated by taking action under

Section 8A. Undoubtedly, the provisions of Sections

7(3) and 7(4) will apply in making of the

Notification.

16. On a perusal of the provisions, as noted, it is

clear that a Notification issued under Section 8A,

increasing the import duty, is a species of delegated

legislation. It must be remembered that Article 265

of the Constitution of India declares that no tax

shall be levied except by the authority of Law. An

increase in the rate of duty cannot obviously be

affected by an Executive Order. That is not to say

that when the Executive is empowered to increase the

rate of duty by way of delegated legislation, it

would not fulfill the requirement of Article 265 and

there can be no hesitation in holding that it is law

within the meaning of Article 13 of the Constitution

of India and it is a species of delegated

legislation. [See in this regard AIR 1961 SC 21 para

11]

21

THE SCHEME OF THE CUSTOMS ACT QUA RATE OF DUTY ON

IMPORTS AND ASSESSMENT TO DUTY

17. Section 12 is the charging Section. It reads as

follows:

“12. Dutiable goods.— (1) Except as

otherwise provided in this Act, or any

other law for the time being in force,

duties of customs shall be levied at such

rates as may be specified under the

Customs Tariff Act, 1975 (51 of 1975), or

any other law for the time being in force,

on goods imported into, or exported from,

India.

(2) The provisions of sub-section (1)

shall apply in respect of all goods

belonging to Government as they apply in

respect of goods not belonging to

Government.”

18. Section 15 deals with the date relevant to fix

the rate of duty. It reads as follows:

“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,—

22

(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 a bill of entry

for home consumption in respect

of such goods is presented under

that section;

(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 or the

arrival of the aircraft or the

vehicle by which the goods are

imported, the bill of entry shall be

deemed to have been presented on the

date of such entry inwards or the

arrival, as the case may be.

(2) The provisions of this section shall

not apply to baggage and goods imported by

post.”

19. In the matter of imports, the rate of duty, which

is the sole area of controversy, is to be determined

on the basis of the rate of duty which is in force on

the day of the presentation of the Bill of Entry. It

will be further noticed that an importer may, when

23

the goods are physically present within the Customs

Station in question, file the Bill of Entry for home

consumption. Section 46(1) also contemplates the

presentation of the Bill of Entry for the goods being

warehoused. This ordinarily would occur when the

importer may have difficulty in paying the duty on

the goods. He may also warehouse the goods when he

has not yet found a buyer for his goods or there are

any other obstacles in clearing the goods. Cases of

goods imported for the purpose of being taken out of

the country by way of transshipment or goods intended

for transit, are not covered by Section 46 (1). The

Bill of Entry under sub-Section (1) is to be

presented before the expiry of the day following the

day (excluding holidays) on which the aircraft,

vessel or vehicle carrying the goods arrives at a

Customs Station, at which the goods are to be

cleared, either for home consumption or warehousing

[See Section 46(3)]. The Second Proviso to Section

46(3) provides that if the Bill of Entry is not

presented within the time specified and there are no

sufficient reasons for such delay, the importer is to

24

pay charges for late presentation. The importer is

also to make a declaration regarding the truth of the

contents of the Bill of Entry, and in support of the

same, he is to produce the invoice and other

documents, as may be prescribed. [See Section 46 (4)]

20. The next procedure contemplated under the Customs

Act in regard to an importer entering any imported

goods under Section 46 for home consumption is for

the importer to carry out self-assessment except in a

situation covered by Section 85 [See Section 17(1)].

The proper Officer is to verify the entries in the

Bill of Entry entered under Section 46, inter alia,

and the self-assessment of the goods carried out by

the importer. He is clothed with the power to examine

or test any imported goods, inter alia, for the

purpose of such verification. The importer is to

furnish any document for verification, as may be

necessary towards the carrying out of the

verification [See Section 17(3)]. It is thereafter

that Section 17(4) empowers the Officer who carries

out the verification to re-assess the duty leviable

on such goods. The perusal of Section 17(4) would

25

reveal that such re-assessment can be done, when, on

verification, examination or testing of the goods,

the officer finds that the self-assessment is not

done correctly. Section 17(4) also employs the

expression “otherwise” after the words “verification,

examination or testing of the goods”. It is argued by

the learned Additional Solicitor General that the

word “otherwise” is attracted in the facts of this

case as it is found that the issuance of the

Notification on 16.02.2019 albeit in the late evening

determined the rate of duty in respect of all Bills

of Entry which may have been presented during the

course of the day and re-assessment was legally

permissible as it fell within the wide embrace of the

word “otherwise”. This question will be answered

after examining, considering and answering the

question as to when the Notification commenced. It

may also be noticed that Section 18(1)(a), which

provides that notwithstanding anything contained in

the Act but without prejudice to Section 46, that the

Officer may carry out provisional assessment. Under

Section 18(1)(a) such provisional assessment is

26

permitted when the importer, inter alia, is unable to

make the self-assessment under Section 17(1), and

what is more, makes a request in writing to the

proper Officer for provisional assessment.

21. There are three other circumstances enumerated in

clause (b), (c) and (d) of Section 18(1) which

entitle the Officer to pass an Order of provisional

assessment. In such a case, it is open to the Officer

to carry out the final assessment. So also, it is

open to the Officer to carry out re-assessment.

22. What is the time at which the importer who

presents a Bill of Entry under Section 46 for home

consumption is to effect payment of the import duty,

when he carries out self-assessment? This question is

answered in Section 47(2)(a) which provides that the

importer is to pay the import duty on the very day of

presentation of the Bill of Entry when the importer

carries out self-assessment as is contemplated under

Section 17(1) of the Act.

23. Section 47(1) contemplates that where the Officer

is satisfied about the goods entered for home

27

consumption, being not prohibited goods, and the

importer has paid the import duty, if any, assessed

thereon, and other charges, under the Act, he is to

pass an Order permitting clearing of goods for home

consumption. It is again to be noted that under

Section 47(2)(b), the importer is to pay the duty

within one day from the date on which the Bill of

Entry is returned to him when there is assessment,

re-assessment or provisional assessment. Section

47(1)(c) also contemplates permitting the importer to

make deferred payment which is permitted under the

Second Proviso to Section 47(1).

24. What is the effect of non-payment of the duty

within the time specified in Section 47(2)? The

answer to this also is contained in Section 47(2)

itself as the law mandates that the importer shall

pay interest on the duty not paid or short paid till

the date of its payment at the rate as provided

therein. It is to be noticed that Section 47 is

related to goods entered for home consumption. No

doubt without payment, an order for clearance of

goods would not be passed.

28

25. Section 28 of the Customs Act provides for

recovery of duties not levied, not paid, short

levied, short paid or erroneously refunded. Similar

provisions are contained in the Central Excise Act as

well. It is also noteworthy that Section 2(25)

defines the word “imported goods” as meaning the

goods brought into India from the place outside India

but it does not include the goods which have been

cleared for home consumption.

26. A perusal of Section 15(1)(a) makes it clear that

as far as goods entered for home consumption under

Section 46, the rate of duty is to be the rate of

duty in force on the date on which the Bill of Entry

in respect of such goods is presented under Section

46. It is not the date on which the goods are ordered

to be cleared under Section 47. In fact, the Scheme

of the Act, in regard to goods entered for home

consumption, is that the importer is to present the

Bill of Entry, as contemplated under Section 46, he

is to make self- assessment under Section 17(1), he

is to make the payment of the duty on the day on

which he presents the Bill of Entry under Section

29

47(2)(a). Should he fail to make the payment on the

same day in the case of self- assessment, he becomes

liable to pay interest as provided till the date of

payment. What is crucial is, however, that only that

date is relevant on which he presents the Bill of

Entry for home consumption in the form and in the

manner, which is prescribed. The word “prescribed”

has been defined in Section 2(32) to mean prescribed

by Regulations made under the Act. Regulations have

been made in regard to presentation of Bill of Entry.

Section 46(1) would reveal that the word

“electronically” came to be inserted by Act 8 of 2011

w.e.f. 08.04.2011. Immediately following the words

“electronically, the words “at the customs automated

system”, have been inserted by the Finance Act, 2018

w.e.f. 01.04.2018. The words “in such form and

manner, as may be prescribed” came to substitute the

words “in the prescribed form”, by the Finance Act,

2018. No doubt, the First Proviso to Section 46(1)

empowers the Principal Commissioner of Customs or the

Commissioner of Customs to allow the Bill of Entry to

30

be presented in any other manner, where it is not

feasible to make the entry electronically.

27. The Regulations holding the field providing for

the form and manner in which the Bill of Entry is to

be presented for home consumption under Section 46(1)

of the Customs Act are called the Bill of Entry

(Electronic Integrated Declaration and paperless

Processing) Regulations, 2018 (hereinafter referred

to as ‘the 2018 Regulations”, for short). Regulation

4(2), which is the relevant Regulation, reads as

follows:

“4(2) The bill of entry shall be deemed to

have been filed and self-assessment

completed when after entry of the

electronic integrated declaration on the

customs automated system or by way of data

entry through the service centre, a bill of

entry number is generated by the Indian

Customs Electronic Data Interchange System

for the said declaration and the selfassessed copy of the Bill of Entry may be

electronically transmitted to the

authorised person or printed out at the

service centre.”

28. A perusal of the aforesaid Regulation makes it

clear that there is not only a deemed presentation of

31

the Bill of Entry which the law calls into existence,

as provided therein but also completion of selfassessment. This deemed presentation and completed

self-assessment takes place when the bill of entry

number is generated. Once there is a deemed

presentation of the Bill of Entry, then, under

Section 15(1)(a), the rate of duty, which is in force

on such deemed date of presentation, would be the

rate which is applicable. This is, no doubt, subject

to the further requirement that the goods are

physically present in the Customs Station. This is

for the reason that under the First Proviso to

Section 46(3), an importer can present a Bill of

Entry in anticipation of the arrival of the goods

provided that the presentation of such Bill of Entry

is limited to a period not exceeding thirty days

prior to the expected arrival. However, in case,

where the Bill of Entry is presented under the First

Proviso to Section 46(3), the rate of duty will be

determined with reference to the act of presentation

of the Bill of Entry, but such presentation of the

Bill of Entry is by a deeming fiction made only from

32

the date of the entry inwards or of the arrival, as

the case may be of the goods.

29. In the facts of these cases, there is no dispute

that the imported goods were very much in the Customs

Station and the Bills of Entry were presented under

Section 46(1) on 16.2.2019. It is clear that the rate

of duty, for the purpose of the cases before the

Court, is to be determined with reference to the

presentation of the Bills of Entry. The law does not

take into consideration even the time of payment of

the duty which is self-assessed by the importer. This

is noted for the reason that the importer, who

presents a Bill of Entry under Section 46 and who

carries out self-assessment, is duty-bound to pay

such duty on the very same date. The consequence of

failure is only the liability to pay interest under

Section 47 besides disabling him from clearing the

goods. It does not postpone the point of time at

which the rate of duty is to be determined.

30. Having dwelt upon the Scheme of the Act in regard

to goods which are imported into India and which have

33

been entered under a Bill of India for home

consumption, the time is now ripe for ascertaining

the impact of the Notification which came to be

issued late in the evening on 16.02.2019. The nature

of the Notification, which is admittedly issued under

Section 8A of the Tariff Act, has been explained

earlier. It is a species of delegated legislation. As

far as law made by Parliament or the State

Legislatures, which are sovereign bodies in their own

right, subject, no doubt, to their position, under

the Constitution, as expounded by this Court, the law

comes into force immediately after the assent is

given by the President or the Governor, respectively.

A law made by Parliament has effect without any

further act on the part of the Executive. This is, no

doubt, subject to the intention expressed otherwise

in the law so made as to any other date from which it

is to have operation. It may also be a case of a

conditional legislation where the law is to be

brought into force by the Executive.

31. No doubt, there is a distinction between

conditional legislation and delegated legislation

34

(See in this regard, judgment of this court in I.T.C.

Bhadrachalam Paperboards and another v. Mandal

 Revenue Officer and others40, where the earlier case

law has been exhaustively dealt with).

32. A Notification, which is made by the Executive,

must indeed be made known. Ordinarily this is made

known by being published in the Gazette. In this

regard, it is profitable to refer to what this Court

laid down in the decision reported in B.K. Srinivasan

v. State of Karnataka41:

“15. … It is, therefore, necessary that

subordinate legislation, in order to

take effect, must be published or

promulgated in some suitable manner,

whether such publication or

promulgation is prescribed by the

parent statute or not. It will then

take effect from the date of such

publication or promulgation. Where the

parent statute prescribes the mode of

publication or promulgation that mode

must be followed. Where the parent

statute is silent, but the subordinate

legislation itself prescribes the

manner of publication, such a mode of

publication may be sufficient, if

reasonable. If the subordinate

legislation does not prescribe the mode

of publication or if the subordinate

legislation prescribes a plainly

40 (1996) 6 SCC 634

41 (1987) 1 SCC 658.

35

unreasonable mode of publication, it

will take effect only when it is

published through the customarily

recognised official channel, namely,

the Official Gazette or some other

reasonable mode of publication. There

may be subordinate legislation which is

concerned with a few individuals or is

confined to small local areas. In such

cases publication or promulgation by

other means may be sufficient [Narayana

Reddy v. State of A.P., (1969) 1 Andh

WR 77].”

33. This view came to be endorsed in a case under the

Customs Act, which is reported in M/s. Pankaj Jain

Agencies v. Union of India and others42. Therefore, it

is only with the publication effected at 20:46:58

hrs. on 16.02.2019, the Notification issued under

Section 8A, increasing the rate of import duty, came

into force.

34. While on publication required in law, to make a

Notification effective, the decision of this Court,

rendered under the Central Excise Act in Collector of

Central Excise v. New Tobacco Company and others43, is

noticed. The question, which was considered, was

whether a Notification under the Central Excise Act

42 (1994) 5 SCC 198

43 (1998)144 CTR(SC) 618

36

became effective from the date on which it was

printed in the Government Gazette or from the date it

was made available to the public. This Court,

elaborately referred to the judgment of the Madras

High Court in Asia Tobacco Company Limited v. Union

 of India and others44. Therein, the High Court, inter

alia, held as follows:

"8. …… “The mere printing of the

official Gazette containing the

relevant notification and without

making the same available for

circulation and putting it on sale

to the public will not amount to the

notification within the meaning of

r. 8(1) of the Rules. ……………………… It

would be a mockery of the rule to

state that it would suffice the

purpose of the notification if the

notification is merely printed in

the Official Gazette, without making

the same available for circulation

to the public or putting it on sale

to the public ...... Neither the

date of the notification nor the

date of printing, nor the date of

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

44 (1985)155 ITR 568 (Mad)

37

public. The date of release of the

publication is the decisive date to

make the notification effective.

Printing of the official Gazette and

stacking them without releasing to

the public would not amount to

notification at all ......”

35. Thereafter, this Court went on to hold as

follows:

“11. We hold that a Central Excise

Notification can be said to have been

published, except when it is provided

otherwise, when it is so issued as to make

it known to the public. It would be a

proper publication if it is published in

such a manner that persons can, if they

are so interested, acquaint themselves

with its contents. If publication is

through a Gazette then mere printing of it

in the Gazette would not be enough. Unless

the Gazette containing the notification is

made available to the public, the

notification cannot be said to have been

duly published.”

36. It may be noticed that a Bench of three learned

Judges came to, however, overrule the Judgment in New

Tobacco Company (supra) in the decision reported in

Union of India and others v. Ganesh Das Bhojraj45.

Therein a Notification was issued under Section 25 of

the Customs Act on 04.02.1987, amending an earlier

45 2000 (9) SCC 461

38

Notification of the year 1976 by which exemption had

been granted and limiting the exemption to the duty

in excess of 25 per cent. The Bill of Entry was filed

on 05.02.1987. This Court took the view that under

Section 25 of the Customs Act, since the Notification

dated 04.02.1987 has been published in the Gazette,

it had come into force and constituted the rates

prevalent on 05.02.1987, when the respondent had

filed the Bill of Entry. In fact, the Court noticed

the subsequent development in Section 25 of the

Customs Act by which sub-Sections (4) and (5) were

added to Section 25, which reads as follows:

“25. Power to grant exemption from duty.—

xxx xxx xxx xxx

(4) Every notification issued under subsection (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.

39

(5) Notwithstanding anything contained in

sub-section (4), where a notification

comes into force on a date later than the

date of its issue, the same shall be

published and offered for sale by the said

Directorate of Publicity and Public

Relations on a date on or before the date

on which the said notification comes into

force.”

The view in New Tobacco Company (supra) was held

to be not good law.

37. It is to be noticed that it is in regard to a

Notification issued under Section 25 of the Customs

Act that the principles contained in sub-Section (4)

and (5) will have effect from the date on which these

provisions were brought into force. As far a

Notification issued under Section 8A, with which this

Court is concerned, it is the principle which has

been laid down in Ganesh Das Bhojraj(supra), which

will apply.

38. In other words, as far as the Notification issued

under Section 8A of the Tariff Act is concerned, the

Notification would come into force on the date on

40

which it is published in the Gazette. The question,

however, which arises in this case is, as far as this

Court is concerned, res integra, viz., whether having

regard to the time at which it was published, whether

Notification would come into force on 16.02.2019, by

including the whole of the day or will it operate

from the time of its publication, or whether the

Notification is to be enforced only after excluding

16.02.2019.

39. The question would pointedly arise whether it

was to have effect for the whole of the day, viz.,

16.02.2019, which means, since the day 16.02.2019 was

born, immediately after the midnight on 15.02.2019,

does a day mean the first moment after the midnight?

If that were the effect, what would be its impact on

the Bills of Entry which were electronically

presented under Section 46(1) of the Customs Act read

with Rule 4(2) of the 2018 Regulations, which have

already been referred to above. It is here that it

becomes necessary to notice the provisions of Section

9 of the General Clauses Act, 1897.

41

SECTION 9 OF THE GENERAL CLAUSES ACT, 1897

40. Section 9 of The General Clauses Act, 1897, reads

as follows:

“9 Commencement and termination of time.

(1) In any Central Act or Regulation made

after the commencement of this Act, it

shall be sufficient, for the purpose of

excluding the first in a series of days or

any other period of time, to use the word

from, and, for the purpose of including

the last in a series of days or any other

period of time, to use the word to.

(2) This section applies also to all

Central Acts made after the third day of

January, 1868, and to all Regulations made

on or after the fourteenth day of January,

1887.”

41. In this case, there is no dispute that

Notification under Section 8A was published in the

Gazette. It was published at 20:46:58 hrs. on

16.02.2019. It is to be noticed that we are not

dealing with a case, where a period of time, limited

by two different termini, is present. A Statute may

fix a terminus aquo. The Statute may be made to last

42

without indicating when the period is to end, which

is the terminus ad quem.

42. Section 9 of the General Clauses Act enunciates

the principle, that for, excluding the first in a

series of days or any other period of time, it

suffices to use the word “from”. It also provides,

likewise, for the devise of using the word “to”, for

the purpose of including the last in the series of

days or other period of time. It is clear from

Section 9 that it contemplates a period, or a series

of days which is marked by both terminus aquo and

terminus ad quem. Section 9 is expressly intended to

apply to a Central Act or Regulation.

43. In this case, we are concerned with the

Notification issued under the Statute, and which is a

piece of delegated legislation, under which, the rate

of import duty has been increased. The increase in

the rate of duty is not for any period. In other

words, it is not a case where the terminus ad quem or

a period of time, is fixed for the operation of the

increased import duty of goods imported from

43

Pakistan. In other words, the increased rate of

import duty under the Notification is to last

indefinitely. The word “indefinite” is intended to

mean that it is to bear life till it is increased,

reduced or completely done away with, in exercise of

powers available under the Customs Act or the Customs

Tariff Act (See in this regard Section 25 of the

Customs Act and Section 2 of the Tariff Act).

A DAY; A PERIOD OF TIME; FRACTION OF TIME

44. It now becomes necessary to refer to principles

enunciated by Courts in diverse situations under

different branches of law.

45. I would begin by referring to an off-quoted

Judgment rendered by the Master of the Rolls, Sir

William Grant in the decision reported in Lester v.

 Garland46. In the said case, there was a bequest of

residual interest in favour of ‘A’ if she gave

security not to marry ‘B’, inter alia, within six

calendar months, after the death of the Testator.

46 [1808] 15 Ves. 248

44

There was a proviso to go over if ‘A’ refused to give

such security. The Testator died on the 12th of

January. Security was given by ‘A’ on the 12th of

July. The Testator died on 12th of January between 8

and 9 in the evening. Security was given by ‘A’ about

9 in the evening on 12th of July. The question, which

was considered was whether the date of the death of

the Testator was to be included within the six

months, within which, ‘A’ had to give the security,

or to be excluded. If the day of the death of the

Testator was included, the security given by ‘A’

would be beyond the period of six months and she

would stand divested of the bequest, whereas, if the

date of the death of the Testator was excluded, then,

‘A’ would be entitled to the bequest as the security

given by her would be within the period of six

months. It would be profitable to notice the relevant

part of the discussion by the learned Judge:

“It is not necessary to lay down any

general rule upon this subject: but upon

technical reasoning I rather think, it

would be more easy to maintain, that the

day of an act done, or an event happening,

ought in all cases to be excluded, than

that it should in all cases be included.

45

Our law rejects fractions of a day more

generally than the civil law does. (See

the note, 14 Ves. 554, where it is

admitted in bankrupty.) The effect is to

render the day a sort of indivisible

point; so that any act, done in the

compass of it, is no more referrible to

any one, than to any other, portion of it;

but the act and the day are co-extensive;

and therefore the act cannot properly be

said to be passed, until the day is

passed. This reasoning was adopted by

Lord Rosslyn and Lord Thurlow in the case

before mentioned of Mercer v. Ogilvie. The

ground, on which the judgment of the Court

of Session was affirmed by the House of

Lords, is correctly stated in the fourth

volume of the Dictionary of the Decisions

of the Court of Session. In the present

case the technical rule forbids us to

consider the hour of the testator's death

at the time of his death; for that would

be making a fraction of a day. The day of

the death must therefore be the time of

the death; and that time must be past,

before the six months can begin to run.

The rule, contended for on behalf of the

Plaintiffs, has the effect of throwing

back the event into a day, upon which it

did not happen; considering the testator

as dead upon the 11th, instead of the

12th, of January ; for it is said, the

whole of the 12th is to be computed as one

of the days subsequent to his death. There

seems to be no alternative but either to

take, the actual instant, or the entire

day, as the time of his death; and not to

begin the computation from the preceding

day.

But it is not necessary to lay down any

general rule. Whichever way it should be

laid down, cases would occur, the reason

of which would require exceptions to be

46

made. Here the reason of the thing

requires the exclusion of the day from the

period of six months, given to

 Mrs. Pointer to deliberate upon the choice

she would make; and upon the whole my

opinion is, that she has entered into the

security before the expiration of the six

months; in sufficient time therefore to

fulfil the condition, on which her

children were to take.”

(Emphasis supplied)

46. In Re. Railways Sleepers Supply Co.

47, an

Extraordinary General Meeting of the company passed a

Special Resolution on 25.02.1885, for the reduction

of the capital of the company. On 11.03.1885, the

Resolution passed on the 25.02.1885, was confirmed.

On a petition filed, seeking sanction of the Court

for the proposed reduction of capital, the question

arose whether there was compliance with Section 51 of

the Companies Act, 1862. The said provision, inter

alia, required confirmation of the Resolution at a

subsequent General Body Meeting which was held at an

interval of not less that fourteen days and not more

than one month from the date of the meeting at which

the Resolution was first passed.

47 (1885) 29 Ch.d. 204

47

47. Chitty J., in his opinion, referred to Lester v.

Garland (supra) and held, inter alia, as follows:

“… Lord Mansfield in his well-known

judgment in Pugh v. Duke of Leeds says, “Date

does not mean the hour or the minute, but the

day of delivery, and in law there is no

fraction of a day.” The day of the death of

the testator, which is equivalent here to the

day of the first meeting, was not reckoned by

Sir William Grant in his well-known decision

in Lester v. Garland, where a bond had to be

given within six months after the testator's

decease. The 51st section states that the

subsequent or second meeting is to be held

“at an interval of not less than fourteen

days or more than a month.” The word “at”

means after the interval, or at some time

after the interval, prescribed by the other

part of the section. The word “at” refers

grammatically rather to a point of time than

a period. ……”

“… The interval “of not less than

fourteen days” was allowed to give reasonable

time for deliberation, and to prevent undue

haste or surprise, and to afford to the

shareholders who might be present at the

first meeting, and also to those who might

not think fit or might not be able to attend

it, time for reflection and consideration,

and to make arrangements to enable them to

attend the second….”

“…. An interval of not less than

fourteen days” is equivalent to saying that

fourteen days must intervene or elapse

between the two dates….”

“… That means fourteen clear days; and

as Littledale , J., said in Reg. v. Justices

of Shropshire, I do not see any distinction

48

between “fourteen days” and “at least

fourteen days.” I must come therefore to the

conclusion that the resolution is bad.

Probably no question has more exercised the

minds of Judges in former times than the

question as to the proper mode of computing

time. Lord Mansfield's judgment in Pugh v.

Duke of Leeds and Lord Wensleydale's judgment

in the case of Chambers v. Smith, to which I

have already referred, are excellent

illustrations of what I have said. ….”

48. In 1895, a case, viz., In Re. North48 arose under

the Bankruptcy Act, 1890. The question was whether an

act of bankruptcy had been committed by reason of the

fact that on an action taken by an execution

creditor, and after the seizure of goods of the

debtor and subsequent private sale, as permitted by

the Court, the Sheriff had held the goods for a

period of twenty-one days. Lord Esher M.R., after

referring to Lester v. Garland (supra), holds as

follows:

“ …., after a learned examination of the

whole subject, laid down what I conceive

to be the wholesome view that no general

rule exists. ….”

48 (1895) 2 Q.B. 264

49

“… The statute which we have to construe

for the purpose of deciding how the period

of time mentioned in it is to be computed

is a Bankruptcy Act, and enacts a new act

of bankruptcy, the commission of which is

to be determined by a computation of time.

….”

“… If we construe s. 1 of the Act of 1890

according to the ordinary English meaning

of the words, it enacts that certain

consequences are to happen if the sheriff

holds for twenty-one days goods seized by

him under an execution: an act of

bankruptcy is committed if he holds them

for that time. The ordinary meaning of the

words is that he must hold them for

twenty-one days; but we are told that

under a technical rule of construction the

section is satisfied if he holds them for

twenty days and a part of a day. Which is

right? ...”

“… Here the result may be to make a man a

bankrupt, which is not a benefit to him,

nor necessarily to the whole of his

creditors. The bankruptcy law is a law of

public social policy, and affects in a

very detrimental manner the status of

those who are brought under its operation;

in old times, indeed, to make a man a

bankrupt was to make him a criminal; …”

“… Bankruptcy is the creature of statute,

and under a long series of bankruptcy

statutes the same practice as to computing

time has been followed, though for

different purposes or results; the

practice is a perfectly well-known one,

the rule in bankruptcy being to exclude

the first day or part of a day, and to

begin the computation of time on the first

whole day. …”

50

“… Again, there is the rule of

construction that if a statute, which so

affects a man's status as to be in effect

a penal enactment, is capable of two

constructions, that one should be adopted

which is most favourable to the person

affected. Applying this rule, the mode of

calculating the twenty-one days ought to

be in favour of the debtor doing something

which would prevent his becoming a

bankrupt at all, and we ought to construe

this section as meaning that the first

day, or part of a day, is to be excluded

from the computation, which should begin

on the day after the date of the seizure.

…”

(Emphasis supplied)

49. A.L. Smith L.J. agreed with Lord Esher M.R. and

held, inter alia, as follows:

“… But it has been shewn from subsequent

cases that there is no such universal

rule, and that in the reckoning of time

each case must depend on its own

circumstances and subject-matter, and for

this I need only refer to the judgment of

Sir William Grant in Lester v. Garland ,

to that of Kelly C.B. in Isaacs v. Royal

Insurance Co., and of Chitty J. in In re

Railway Sleepers Supply Co. To say,

therefore, that a rule of law compels us

to say that to hold goods for twenty days

and a fraction of a day is the same as to

hold them for twenty-one days is to say

that which is not a fact. …”

51

50. Rigby L.J. also concurred with Lord Esher M.R.

and, in his judgment, held as follows, inter alia:

“… It was contended before us, and it

seems at one time to have been thought to

be law, that where a fact or event was

mentioned from which a given period of

time was to be reckoned, the Court was

bound to reckon the portion of the day on

which the act was done as though it were a

whole day, and to reckon it as the first

day of the period. That doctrine underwent

a thorough examination in Lester v.

Garland, at the hands of Sir W. Grant, who

considered the cases in which the first

day had been included or excluded, and

came to the conclusion (which I think was

inevitable) that there was no general rule

on the subject. …”

“… His classification of the cases shews

that where the calculation is in favour of

a person, the construction should be

adopted which is more favourable to him.

In the case of a sheriff, for instance, it

is more in his favour to include the day

on which the act is done than to exclude

it, and on that ground it is included; but

where, to take another example, something

has to be done which is necessary to

complete a title, the first day is

excluded, otherwise there would be a

cutting down of the time allowed for doing

the act. In my opinion, although Sir W.

Grant did not put the proposition in so

many words, his judgment leads us to the

conclusion that the question of whether

the day on which the act is done is to be

included or excluded must depend on

whether it is to the benefit or

disadvantage of the person primarily

interested. But whether or no the

52

proposition is to be put so high, we have

here a statute which does not say twentyone days from taking possession; and it is

only to cases where a terminus is

mentioned that any such general rule was

ever held to apply. The present is an a

fortiori case; no terminus is mentioned,

and the only question is whether the

sheriff held for twenty-one days. …”

(Emphasis supplied)

51. On 05.05.1922, by a Notification in the Fort

St. George Gazette Extraordinary, published on a

Friday, the Table of Fees under Appendix-II, the old

Rules on the Original Side of the Madras High Court,

was amended and instead of a fixed fee of Rs.30/-

levied under Serial No.1, it was provided that

Rs.150/- was to be levied in all the suits where the

value of the subject matter does not exceed

Rs.10,000/-, inter alia. The Notification further

recited that the amendments were to come into force

from the date of publication in the Fort St. George

Gazette. The Gazette Extraordinary reached the High

Court at about 05.00 p.m. on 05.05.1922. A Special

Bench was constituted to resolve the controversy as

to whether the amended Scale of Fees was to apply

53

from the 5th day of May or after excluding the 5th May.

The three learned Judges, In Re: Court Fees49

proceeded to author three separate Judgments. The

majority view is contained in the judgments of the

Chief Justice and Justice V.M. Coutts Trotter. In

their Judgments, they took the view that the amended

Scale of Fees, though as already noted, represented

an increase from an earlier Scale of Fees, was to

apply even in regard to the suits which came to be

instituted before the time of the Notification on

05.05.1922. In the Judgment of the learned Chief

Justice, the following discussion is noted:

“2. … I approach this matter

conscious of the salutary rule that, in

all statutes imposing taxation, any real

ambiguity must be decided in favour of the

subject and against the Grown. I consider

that the hour of the day at which the

Gazette was actually published is a wholly

irrelevant consideration, because on

neither view does it make any difference.

If the Gazette had been published early in

the morning, according to the view of

Kumaraswami Sastri, J., the tax will come

into operation only the next day. If it

had been published late in the night,

according to the view of Coutts-Trotter,

J., the tax would still be operative from

49 AIR 1924 Madras 257

54

the time the office opened for the receipt

of plaints on that day. I agree that we

have nothing to do with the English Common

Law except in so far as it may afford some

guide as to the proper meaning to be

attached to words in the English language.

… .

3. … Applying the general rules stated

above to this case, the named date must be

included unless there is some valid reason

why it should not be, and I can find none.

It is true that it may have the effect of

making persons pay more than they

understood they had to pay when they filed

their suits; but this seems to me a ground

for criticising the method of imposing

this tax rather than a ground for

interpreting the notice in any particular

way; and I think that this argument is

more than counterbalanced by the fact that

this was a sudden imposition of a tax

which in many cases could be avoided if

notice was given of it in time for suits

to be filed between the time of the

publication and of its actually coming

into operation. …”

(Emphasis supplied)

52. In the Judgment of V.M. Coutts Trotter J., the

learned Judge observes as follows:

“6. … What I conceive to emerge

from the decided cases is this: that as

the law in general neglects fractions of a

day you must either exclude or include the

whole of the day with which a given

statute or rule or regulation deals. And

the exclusion or inclusion, I think, is

55

clearly provided in two other rules. If

you are fixing the point of time at which

a certain state of things is to be called

into existence, that state of things comes

into existence at midnight of the day

preceding the day at which or on which or

from which or from and after which the new

state of things begins. In such cases the

statute or rule is only concerned in

fixing the terminus o quo of a new state

of law which is enacted to continue

indefinitely, in other words, until

repealed by a new enactment of the

legislature where, in short, you have a

terminus a quo but no terminus ad quem.

………………………………

…… Where a statute fixes only the terminus

a quo of a state of things which is

envisaged as to last indefinitely, the

common law rule obtains that you ought to

neglect fractions of a day and the statute

or regulation or order takes effect from

the first moment of the day on which it is

enacted or passed, that is to say, from

midnight of the day preceding the day on

which it is promulgated: where, on the

other hand, a statute delimits a period

marked both by a terminus a quo and a

terminus ad quem, the former is to be

excluded and the latter to be included in

the reckoning. This notification clearly

falls within the former class and must be

taken to have come into force on the first

second of the 5th May, that is to say,

from midnight of the 4th May. It follows

that the plaints filed on the 5th May are

liable to the enhanced fees laid down by

the Regulation.

7. A very large part of the argument

addressed to us on behalf of those who

filed plaints on the 5th May was based on

what was called a hardship suffered by

56

them if our decision should be favourable

to the Crown. Increased taxation is always

in a sense a hardship to the subject but I

cannot see any special hardship imposed

upon these particular litigants. If the

suits which they filed are not in their

opinion worth the expenditure entailed by

the increased rate of institution fees,

they would doubtless be permitted to ?

withdraw them-a suit evaluated at that

rate by the person who institutes it, is

not likely to be based on a very solid

cause of action. ….”

(Emphasis supplied)

53. However, C.V. Kumaraswami Sastri, J., dissented.

The learned Judge also referred to Lester v. Garland

(supra) and In Re. North (supra) and held as follows:

“21. Applying the law as laid down in

the previous cases to the facts of the

present case, we have to see whether the

5th of May, 1922, is to be included or

excluded. I might, in this connection,

state that I do not think that the

principles which govern, or the devices

which are resorted to, by the Executive

for the purpose of raising money by

taxation ought to have any weight with us

in determining whether the date of

publication is to be included or excluded.

I do not think the High Court is part of

the tax gathering machinery of the

Government or has any concern with the

consequences to the Government of their

decision on the construction of the rule.

57

The rule, I take it, was passed by the

Judges of the High Court in the exercise

of the powers entrusted to them to control

the administration of justice and the fees

were raised because in the opinion of the

Judges it was just and proper that

litigants ought to pay more for the

benefits which they derive by resorting to

the jurisdiction of the High Court. The

notification expressly states that it is

to have effect from the date of

publication, the object of the publication

being that the public ought to have notice

that the fees were being raised so that

they might know exactly what they were in

for when they resorted to the High Court

for justice. The notification, as I have

already said, was (as appears from a note

of the Deputy Registrar) received in the

High Court at 5 p.m., the office closing

at 5 p.m. It seems to me that the

litigants who filed plaints before they or

even the office had knowledge of the

publication of the rule did what was

perfectly valid under the old rules and

they presented the plaints with Rs. 30

stamp irrespective of the value of their

claim. A person who files a plaint which

is properly stamped and which is in order

at the time of presentation is entitled to

have his plaint admitted on presentation

though as a matter of convenience the

office receives the plaints and admits

them at the end of the day or later on.

There seems to me to be very little

justice or equity in directing that

persons who have done what was perfectly a

legal and valid act at the time should pay

a Court-fee which is much higher simply

because a notification was received at the

close of the day making the higher fees

chargeable from the date of the

notification. It may well be that if those

persons had notice that instead of Rs. 30

58

they had to pay at least Ra. 150 and a

maximum that would range according to the

value of their claim, they might rather

have compromised with the other side or

might have had resort to other proceedings

like arbitration for settling their

claims. I can find nothing to justify

charging people, who filed their plaints

on that day without knowledge of the

notification which only reached the High

Court at 5 p.m., with the higher fees in

respect of plaints filed during the course

of the day.

22. Having regard to all the facts

and circumstances of the present case, I

think that, if the law is that there is no

hard and fast rule in deciding whether the

word "from" is inclusive or exclusive of

the date of notification and that each

case must depend upon its own

circumstances subject-matter, justice and

equity demand that the date of the

notification ought to be excluded. I

would, therefore direct that all the

plaints received on the 5th of May, 1922,

be stamped with Rs. 30.”

(Emphasis supplied)

THE POSITION UNDER THE LAW RELATING TO

PREVENTIVE DETENTION

54. A Division Bench of High Court of Delhi had

occasion to consider the question again of time of

operation in the following circumstances in the

decision reported in Jasbir Singh vs. Union of

59

 India50. The contentions urged by the detenu included

the contention that the detention orders stood

vitiated as in contravention of Section 3(3) of the

COFEPOSA Act, the grounds of detention was served on

the 6th day of the day of Order of detention being

served. Section 3(3), inter alia, provides for

communication to a person of the grounds of detention

as soon as may be after detention but ordinarily not

later than five days and in an exceptional case and

for reasons to be recorded in writing not later than

15 days from the date of detention. The Division

Bench, which included Chief Justice M. Jagannadha Rao

(as His Lordship then was), took note of judgment of

the Madras High Court reported in In Re: Court Fees51

under the Court Fee Act and took the view that the

word “from” is similar to the word “after”, and

therefore, the date on which the detention order was

served, has to be excluded. In this regard, the

Court took the view that the legislature has given

clear 5 days to the Government to complete many other

formalities before serving the grounds of detention.

50 (1995) ILR 2 Delhi 399

51 AIR 1924 Madras 257

60

This is besides being guided by the use of words ‘as

soon as may be’.

THE CASES UNDER CONTRACTS OF INSURANCE

55. In the decision reported in New India Assurance

 Company Limited vs. Ram Dayal and Others52, the

vehicle was insured earlier upto 31st August, 1984.

Instead of obtaining renewal, a fresh insurance was

taken from 28th September, 1984. The accident took

place on the very same day, namely, 28th September,

1984. The insurer repudiated its liability as the

policy was taken after the accident. The High Court

took the view that the policy of insurance became

operative from the commencement of the date of

insurance, namely, the previous midnight. This Court

agreed with the view of the High Court that once a

policy is taken on a particular day, its

effectiveness is from the commencement of the day.

It found the insurer liable. It is necessary only to

notice paragraphs 5, 6 and 7:

“5. As pointed out in Stroud's judicial

Dictionary 'Date' means day, so that

52 (1990) 2 SCC 680

61

where a cover not providing for

temporary insurance of a motor car

expires 15 days after date of

commencement, it runs for the full 15

days after the day on which it was to

commence."

6. Similarly it has been stated in

Stroud that "a bill of exchange, or

note, is of the date expressed on its

face, not the time when it is actually

issued.”

56. The view taken by this Court in regard to the

issue of the liability of insurer with reference to

the time at which the policy of insurance is taken,

may be noticed from the recent judgment which

adverted to, not only Ram Dayal (supra) but the

Judgment rendered by three-Judge Bench, reported in

Oriental Insurance Company Limited v. Porselvi and

 Another53 and another judgment reported in Oriental

Insurance Company Limited v. Sunita Rathi and

 Others54. The recent judgment is reported in National

Insurance Company Limited vs. Geeta Devi and Others55

,

I may refer to paragraphs 3 and 4 which adverts to

the decisions of this Court distinguishing Ram Dayal

53 1997 (1) SCC 66

54 1998(1) SCC 365

55 2010(15) SCC 670

62

(supra). Finally, this Court took the view, there is

a cover note mentioning the time as 04:40 p.m. and it

was issued after the accident and therefore, the

insurer was not liable:

“3. The question again came up for

consideration in National Insurance Co.

Ltd. v. Jikubhai Nathuji Dabhi; (1997) 1

SCC 66. Reliance was placed on the

abovementioned judgments. However, a

three-Judge Bench of this Court noted

that the Tribunal had recorded, as a

fact, that the policy had come into

force at 4:00 P.M. whereas the accident

had taken place at 11:40 a.m. This

Court held that in view of the special

contract and in view of the fact that

the accident had occurred earlier, the

insurance coverage would not enable the

claimant to seek recovery from the

Insurance Company.

4. The question again arose in Oriental

Insurance Co. Ltd. v. Sunita Rathi;

(1998) 1 SCC 365, was relied upon. This

court distinguished Ram Dayal case;

(1990) 2 SCC 680, was relied upon. This

Court distinguished effective date and

time of the policy was after the

accident, the Insurance Company would

not be liable.”

57. After having made a reference to some of the

decisions covering different branches of law, the

63

question to be resolved comes into focus. It is

clear that the situation which is presented before

us, is not covered by the principle which is embedded

in Section 9 of General Clauses Act, 1897. In other

words, having regard to the terms of the

Notification, which is a form of delegated

legislation, by which the Central Government has

increased the rate of import duties of goods imported

from Pakistan, though the notification is gazetted on

16.02.2018 at 20:46:58 hrs., there is no period for

which it is to last as already noticed, and in that

sense, it can be argued that there would be no

occasion for exclusion of the date on which it was

issued.

WHETHER SECTION 5(3) OF THE GENERAL CLAUSES ACT

APPLIES TO THE NOTIFICATION?

58. Section 5 (3) reads as follows:

“5(3) Unless the contrary is expressed,

a Central Act or Regulation shall be

construed as coming into operation

immediately on the expiration of the day

preceding its commencement.”

64

59. The argument of learned Additional Solicitor

General is that in terms of Section 5 (3), the

notification issued under the Customs Tariff Act will

have effect from the expiry of the previous day.

That is to say, it will operate from the first tick

of time past the mid night of 15.2.2019. In order to

appreciate this argument, we must consider definition

of the word ‘Central Act’ and ‘Regulation’ in the

General Clauses Act. Section 3 (7) defines Central

Act. It reads as follows:

“(7) "Central Act" shall means an Act of

Parliament and shall include-

(a) an Act of the Dominion legislature or

of the Indian Legislature passed before

the commencement of the Constitution, and

(b) an Act made before such commencement

by the Governor General in Council or the

Governor General, acting in a legislative

capacity;”

60. Section 3 (50) defines ‘Regulation’. It reads as

follows:

“3(50) "Regulation" shall mean a

Regulation made by the President under

article 240 of the Constitution and

shall include a Regulation made by the

President under article 243 thereof and

a Regulation made by the Central

Government under the Government of India

65

Act, 1870, or the Government of India

Act, 1915, or the Government of India

Act, 1935”

61. It is quite clear that the notification which is

issued is one which is issued under Section 8A of the

Tariff Act. The notification is not one which is

made by Central Legislature, namely, the Parliament.

It therefore is not a Central Law as defined in the

Act. We have also noticed the definition of the word

‘Regulation’. The notification is not a regulation

as defined in General Clauses Act. There is no merit

in the contention of the Union of India that by

virtue of Section of 5(3) of the General Clauses Act,

the notification must be treated as effective from

the point of time immediately after mid night on

15/16 February, 2019.

THREE POSSBILE VIEWS

62. There are three possible answers to the questions

as to what is to be the meaning of the word ‘day’, in

the context of the provisions of Section 15 the

Customs Act and the Notification.

66

1.The first way to look at “the day”, would be to

take it as a fraction of day, viz., 16.02.2019,

having its beginning at 20:46:58 hrs. and ending

with the midnight on 16.02.2019.

2.The second way to look at it is, it would

operate only after the midnight of 16.02.2019,

and would impact Bills of Entries presented on

17.02.2019 onwards. In other words, it would be

an interpretation which would exclude 16th

February, 2019.

3.The third day to look at it would be as follows

– “16.02.2019, would mean the day commencing

immediately after the midnight on 15.02.2019,

and therefore, it would be the whole of the 24

hours commencing at midnight of 15.02.2019 and

would include the period of time during the day

during which the respondents had presented the

bill of entry”.

63. The question is certainly not free from

difficulty. The solution must, however, be found.

67

On one hand, we are dealing with a Notification by

which the appellant has purported to increase the

rate of duty to a hefty quantum of 200 per cent,

following the incident which took place at Pulwama.

Would it be a fair and reasonable to include the

whole, the day 16.02.2019, having regard to the

effect on the importer of the goods who would have

struck the bargain on the basis of rate of duty being

what it was prior to the Notification? Could it not

be said that based on the contracts for import, the

importer would have entered into contracts for sale

of goods in India where the price would be fixed with

reference to the position obtaining as on the date of

contract for import.

64. On the other hand, what we are called upon to

decide, is the question of time at which the

delegated legislation will take effect. It is true

that there is no equity about tax. The fact that

there is a sudden increase in the rate of tax, may

not render it vulnerable on the score that it

violates Fundamental Rights. [See in this regard, the

68

Judgment of this Court in Pankaj Jain vs. UOI

(supra)].

65. If analogy is to be drawn from the majority view

of Madras High Court in the matter relating to Court

Fees (supra), it can, indeed, be urged that the

impact of the increased duty of import cannot by

itself decide the question as to the point of time at

which the delegated legislation must operate from.

66. Yet another aspect which could not be over-looked

is while it is true that in Section 15 of the Customs

Act, what is referred to is the rate of duty enforced

on the date, the law itself entitles importer to

have the goods cleared upon payment of the duty which

is accepted as correct in the self-assessment

proceedings, following the due presentation of the

bill of entry under Section 46 read with Rule 4(2) of

the 2018 Regulations. In conjunction with the mandate

of charging section contained in Section 12 and

Section 15 of the Customs Act which fixes the date

according to the rate of duty as the date of

presentation of the bill of entries, could it

69

certainly not be said that the law would abhor the

reopening of transactions which have culminated in

proceedings which are otherwise impeccably correct

and regular. By way of re-assessment can matters

concluded in the eye of law be revisited on the basis

of a notification which comes much later in the day?

There is yet another aspect which must also be borne

in mind. The question before us, arises on the basis

of notification which is, indeed, a form of delegated

legislation which is issued under Section 8A of the

Tariff Act. Section 8A of the Tariff Act empowers

the Central Government to increase the rate of import

duty but the power to issue a notification under

Section 8A, is not conferred to increase the rate of

import duty with retrospective effect.

67. We may at once notice the counter argument. By

ensuring full play for the notification for the whole

of the day on which it was issued, the provisions of

Section 15 of the Customs Act in the view of

Additional Solicitor General, are duly honoured. It

is his argument that any other view would involve

rewriting of Section 15, as Section 15 contemplates

70

the rate of duty to be the rate of duty for the day.

There cannot be two rates of duty at a given point of

time. If the rate of duty, on a proper

interpretation of the Notification would hold the

field at all points of time during the whole of

16.02.2019 at which the respondents may have

presented the Bills of Entry in tune with the

prevailing rates of duty which would have been

applicable otherwise, it would not detract from the

power of authority to reassess on the strength of an

instrument like the Notification. What would

logically and inexorably follow, in other words, is

that the rate of duty applicable during the whole of

the day on 16.02.2019 was only the increased rate of

duty. This was, therefore, the correct rate of duty

at which the importers were to pay the duty. There

is no illegality involved in resorting to power

enabling reassessment and recovery of the correct

duty from the respondents. In other words, there is

no retrospectivity involved, runs the argument.

68. There can be no doubt that the principle which

appears to have evolved over a period of time is that

71

generally, the law frowns upon determining a day with

reference to its fractions. Undoubtedly, in the case

of Central Act or a Regulation, the principle is

statutorily incorporated in Section 5(3), that unless

a contrary intention appears, it begins its journey

in the Statute Book from the first point of time past

the stroke of the previous midnight. Section 5(3)

does not apply to the notification which is a form of

delegated legislation, as found hereinbefore.

69. If the contention of the Union of India is

accepted, though the notification is issued late in

the evening, the ‘day’ referred in Section 15 of the

Customs Act would commence from the first moment past

the midnight of 15.02.2019. The diametrically

opposite option would be to exclude the whole of the

day on which the notification was issued and the

third option is that the day would consist of the

hours remaining of the day 16.02.2019 after the time

at which the Notification was issued. In other

words, under the third option, the time of operation

of the notification was 20:46:58 hrs. and continued

till midnight of 16.02.2019. It would indeed

72

constitute a fraction or part of an ordinary day

consisting of twenty-four hours.

70. If the argument of Mr. P.S. Narsimha, learned

Senior Counsel, is accepted, then, it would have

operation from the time at which the Notification is

issued. This is because in answer to a query as to

what would be the position if the Notification had

been issued at 10.00 a.m. on 16.02.2019 and the Bills

of Entry were presented after 10.00 a.m., his

response was, the importers would have to pay the

higher rate of duty under the Notification.

Therefore, his argument appears to be that a

Notification must come into operation with reference

to the point of time of the day when the Notification

was issued.

71. The principle that fractions of the day are

eschewed from consideration, is not a universal

principle which knows no exceptions.

72. Section 48 of the Transfer of Property Act, 1882,

reads as follows:

73

“48. Priority of rights created by

transfer.—Where a person purports to

create by transfer at different times

rights in or over the same immoveable

property, and such rights cannot all exist

or be exercised to their full extent

together, each later created right shall,

in the absence of a special contract or

reservation binding the earlier

transferees, be subject to the rights

previously created.”

73. In an enquiry, as to the priority of title, the

fractions of the day, undoubtedly, will assume

relevance. In fact, the exact time at which a

document is registered, will determine the question

of priority, and consequently, of title itself, to

the property concerned and it is open to parties to

adduce evidence in this regard.

74. Section 47 of the Registration Act, 1908, reads

as follows:

“47. Time from which registered document

operates.—A registered document shall

operate from the time which it would have

commenced to operate if no registration

thereof had been required or made, and not

from the time of its registration.”

74

Here again, the time of the day may become

decisive. The recent decisions of this Court in

regard to insurance contracts appear to accept the

significance of the time of the day. (See para 56 of

this judgment).

75. Section 5(1) of General Clauses Act, 1897 reads

as follows:-

“5. Coming into operation of enactments.—

(1) Where any Central Act is not expressed

to come into operation on a particular

day, then it shall come into operation on

the day on which it receives the assent,—

(a) in the case of a Central Act made

before the commencement of the

Constitution, of the Governor-General, and

(b) in the case of an Act of Parliament,

of the President.”

It must be noticed that law which is made by the

legislature is to be treated differently from

delegated legislation. A law if made by Parliament

including a change in the rate of duty in the

Customs-Tariff Act would involve a process which is

attended by a certain level of publicity. In this

75

regard, the words of Bailhache, J. in Johnson v.

 Sargant & Sons56 ; 1917 1 K.B. 101, come to mind:-

“While I agree that the rule is that a

statute takes effect on the earliest

moment of the day on which it is passed

or on which it is declared to come into

operation, there is about statutes a

publicity even before they come into

operation which is absent in the case of

many Orders such as that with which we

are now dealing ; indeed, if certain

Orders are to be effective at all, it is

essential that they should not be known

until they are actually published.”

There is a process and time involved in

Parliament which is unlike what happens in the case

of a delegated legislation of the sort in particular,

projected in these cases, namely, a notification

issued by the executive under Section 8A. It is on

this basis that the law made by the legislature is

taken as known to the public and mere assent of the

President would suffice and the need to make any

delegated legislation known by publication before it

becomes effective is insisted upon. Publication in

the case of delegated legislation is based on a

rationale. On this rationale even the principle

56 1917 1 K.B. 101

76

embedded in Section 5 in regard to the law made by

the legislature cannot be applied to a notification

issued under Section 8A of the Tariff Act.

76. The view taken by Justice Kumaraswami Sastri, in

Re: Court Fees (supra), in the context of the

increase in the Court Fee, effected under a

Notification, which came to the High Court only at

about 05.00 p.m., which was around the time when

Court closed down, was to exclude the operation of

the increased Court Fee qua the suits which were

filed during the course of the day.

77. At the time, when the Madras High Court

considered the question, it may be noticed that the

Constitution of India was not in force. The matter

has not been approached on an analysis as to the

nature of subordinate legislation and the point of

time when a subordinate legislation comes into force.

The concept of State action, satisfying the

requirement of it being fair, as is the mandate of

Article 14, could not have been possibly considered

by the learned Judges of the Madras High Court. Under

77

the Customs Act read with the Tariff Act, as noticed,

the Scheme provides for an importer, wishing to enter

goods for home consumption, to file Bills of Entry,

do self-assessment and pay the duty on the same day.

If all goes well, which means that the selfassessment is in accordance with the existing law,

and the rate of tax is calculated with reference to

the rate of duty as stipulated and the amount of duty

is paid, and if there is any other amount to be paid,

the same is also paid, Section 47 of the Act would

oblige the Officer, unless, of course, the goods are

prohibited goods, to issue an Order permitting

clearing the goods. Though, there is no Order for

clearing the goods in these cases under Section 47,

the said Order is the culmination of the steps to be

undergone by an importer for clearing the goods. Once

the self-assessment is correct and the other

conditions in Section 47 do not militate against the

importer, the goods can be physically cleared, and

having regard to the definition of the “imported

goods”, they cease to be imported goods.

78

78. In the context of the Customs Act, and having

regard to the Scheme, which, in the case of import

duty, consists of filing of Bill of Entry for home

consumption, self-assessment and payment of duty on

the basis of the same and the rate being clearly

fixed with reference to the particular point of time

when the Bill of Entry is presented and there is a

deemed presentation and even a deemed assessment,

which is otherwise in order, and bearing in mind the

principle that Section 8A does not provide power for

increase of rate of duty with retrospective effect,

the Notification must be treated as having coming

into force not before its publication which is at

20:46:58 hrs. on 16.02.2019. This would necessarily

mean that the Notification cannot be used to alter

the rate of duty on the basis of which, in fact,

there was presentation of Bill of Entry several hours

ago, the self-assessment was done and what is more,

the self-assessment was completed under Regulation

4(2) of the 2018 Regulations. There cannot be reassessment. The interpretation based on time of

79

publication is in harmony with a view that accords

respect for vested rights.

TWO INCONSISTENT RATES AT THE SAME POINT OF TIME

79. There is no merit in the submission of the

appellants in this regard. Once it is found that the

notification upon publication would take effect from

the time of its publication then in regard to the

bills of entries which stand presented within the

meaning of Section 46 of the Customs Act read with

4(2) of the 2018 Regulations, earlier to such

publication, the rate of duty in regard to the same

would be only the rate of duty which prevailed at the

time of the deemed presentation under Regulation 4(2)

of the 2018 Regulations.

EFFECT OF THE WORD “OTHERWISE” IN SECTION 17(4) OF

THE CUSTOMS ACT, 1962

80. The expression “otherwise” in Section 17(4), will

not come to the rescue of the appellants, in the

facts of the instant case. While the word “otherwise”

may be capable of taking care of situations which are

not covered by the preceding expressions, viz.,

80

verification, examination, attesting of the goods, it

cannot mean that it will empower the Officer to alter

the rate of duty which is prevalent at the time of

the self-assessment following the due presentation of

the Bill of Entry. If it is otherwise, it will be

open to the Department to reopen cases of concluded

assessments by virtue of the deemed completion of

assessment under Regulation 4(2) without any legal

justification. That would be plainly impermissible

being illegal. This is not a case where the

assessment is assailed on any other ground except by

insisting on a rate of duty which is in applicable.

WHETHER THE CASE LAW RELIED UPON BY THE APPELLANTS

MILITATE AGAINST THE AFORESAID VIEW

81. The question which arose before the Constitution

Bench of this court in M/s. Bharat Surfactnts (P)

 Ltd. v. Union of India57 may not assist the

appellants. The case involved a

challenge to Section 15(1)(a) of the customs Act.

This court repelled the challenge. More importantly,

that was a case where the vessel in which the goods

were carried belonging to the petitioners arrived on

57 1989 (4) SCC 21

81

11th July 1981. Berth was not available. By reason of

the same it could not discharge its cargo at Bombay.

This court took the view that what is relevant is the

date on which the Bill of Entry is presented.

Therefore, it cannot be treated as authority for the

proposition canvassed by the appellants. The

decision of this Court in Priyanka Overseas (P) Ltd.

 v. Union of India58 also will not assist the

appellant in persuading this Court to answer the

question in favour of the appellant. No doubt, the

court has reiterated the principle in Section 15 of

the Customs Act and the question actually fell for

decision under Section 15 (1)(b) of the Act as it

stood prior to its amendment. Section 15 (1)(b) as

it stood then contemplated the rate of duty

applicable in the case of goods cleared from a

warehouse under Section 68 to be rate on the date on

which the goods were actually removed from the

warehouse. Quite apart from the fact that the said

provision has been amended, we are in this case

concerned with Section 15(1)(a) and what is more

58 1991 Suppl.(1) SCC 102

82

important, the actual question is the impact of the

notification issued under Section 8A and what is the

significance of the word “the date”. In the decision

of this Court in Dhiraj Lal H. Vohra v. Union of

 India59, the ship arrived at the port on 2.3.1989 and

inward entry was also given on the same day. The

contention taken by the appellant that the ship had

entered the Indian territorial waters on 20.2.1989

and was ready to discharge the cargo was found

irrelevant for purposes of Section 15(1) read with

Sections 46 and 31 of the Customs Act. This decision

also does not assist the Court in deciding the

question which squarely falls for decision. The

decision of this Court in D.C.M.Ltd. and Another V.

 Union of India60 involved a challenge to the validity

of Section 15(1)(b) of the Customs Act. Following

the filing of “Bill of Entry for warehousing” on

24.2.1982, the imported goods were warehoused. The

goods were cleared from the warehouse on 3.3.1982 and

15.4.1982. On the basis of Section 15(1)(b) taking

note of the dates of clearance from the warehouse,

59 1993 Supl. (3) SCC 453

60 1995 suppl. (3)SCC 223

83

the duty was levied. The Court noted that Section

12, the charging section was subject to Section 15

among other sections. An option was given to the

importer to either file a Bill of entry for home

consumption straight away in which case he has to pay

the duty based on the filing of the bill of entry.

In the case of bill of entry for warehousing, the

date of clearance of the goods determined the rate

under section 15(1)(b) as it stood. It does not have

any effect qua the facts of the case before this

Court except that what determines the date of the

rate will be found from Section 15 of the Customs

Act.

82. Coming to the decision of this Court in Raj

 Kumar Yadav v. Samir Kumar Mahaseth61, the facts of

the case was that an election petition was presented

on 27.8.2003 after the designated judge had retired

to his chamber at 4.15 p.m.. The last date of

limitation was 27.8.2003. The court inter alia held

as follows:

61 2005 (3) SCC 601

84

“6. The limitation provided by Section

81 of the Act expires on the 45th day

from the date of election. The word

“day” is not defined in the Act. It

shall have to be assigned its ordinary

meaning as understood in law. The word

“day” as per English calendar begins at

midnight and covers a period of 24

hours thereafter, in the absence of

there being anything to the contrary in

the context. (See Ramkisan Onkarmal

Agrawal v. State of Maharashtra [AIR

1994 Bom 87 : 1994 Mah LJ 369] , AIR at

p. 94, Municipal Council of

Cuddalore v. S. Subrahmania Aiyar [16

MLJ 101 : ILR (1906) 29 Mad 326] and P.

Ramanatha Aiyar, The Law Lexicon, pp.

470, 471.) Thus, the election petition

could have been presented up to the

midnight falling between 27-8-2003 and

28-8-2003.”

This Court also found that the High Court should

not have allowed the period of limitation to be

abridged by the rules. This is besides also finding

that the rules were not properly appreciated. It is

to be noted that question involved was the period of

limitation to file the election petition. The last

day was therefore understood in the manner done. The

decision of this Court in Ahmadsahab Abdul Mulla(2)

 (Dead) By Proposed LRs. vs. Bibijan and others62 dealt

with the effect of the use of the expression ’date’

62 2009 (5) SCC 462

85

in Article 54 of the schedule to the Limitation Act,

1963. This Court inter alia held as follows:

“9. According to Advanced Law

Lexicon by P. Ramanatha Aiyar, 3rd

Edn., 2005, the word “date” means as

follows:

“Date.—(As a noun) The point of time at

which a transaction or event takes

place; time given or specified; time in

some way ascertained and fixed; in a

deed, that part of the deed or writing

which expresses the day of the month

and year in which it was made, (2 Bl.

Commn. 304; Tomlin). In Bement &

Dougherty v. Trenton Locomotive, etc.,

Co. [32 NJ Law 513] (NJ Law at p. 515)

it is said: ‘The primary signification

of the word date, is not time in the

abstract, nor time taken absolutely

but, as its derivation plainly

indicates, time given or specified time

in some way ascertained and fixed; this

is the sense in which the word is

commonly used. When we speak of the

date of a deed, we do not mean the time

when it was actually executed but the

time of its execution, as given or

stated in the deed itself.’

‘Where a deed bears no date, or an

impossible date, and in the deed

reference is made to the “date”, that

word must be construed “delivery”; but

if the deed bears a sensible date, the

word “date”, occurring in the deed,

means the day of the date, and not that

of the delivery’ (Elph. 123,

citing Styles v. Wardle [(1825) 4 B & C

908 : 107 ER 1297] ; …).

86

‘Date’, though sometimes used as the

shortened form of ‘day of the date’, is

not its synonym; but means the

particular time on which an instrument

is given, executed, or delivered

(Howard case [2 Salkeld 625: 91 ER 528:

1 Ld Raym 480: 91 ER

1219] ; Armitt v. Breame [(1704) 2 Ld

Raym 1076: 92 ER 213]

and Pewtress v. Annan [(1841) 9 Dowl

828] , Dowl at pp. 834-35). …

‘The word “date” is much more commonly

descriptive of a day than of any

smaller division of time’ (per

Stormonth Darling,

L.O., Simpson v. Marshall [37 Sc LR

316]

Date means day, so that where a cover

note providing for temporary insurance

of a motor car expires ‘15 days after

date of commencement’ it runs for the

full 15 days after the day on which it

was to commence

(Cartwright v. MacCormack [(1963) 1 WLR

18 : (1963) 1 All ER 11 (CA)] ).”

XXX XXX XXX XXX

11. The inevitable conclusion is that

the expression “date fixed for the

performance” is a crystallised notion.

This is clear from the fact that the

second part “time from which period

begins to run” refers to a case where

no such date is fixed. To put it

differently, when date is fixed it

means that there is a definite date

fixed for doing a particular act. Even

in the second part the stress is on

“when the plaintiff has notice that

performance is refused”. Here again,

there is a definite point of time, when

87

the plaintiff notices the refusal. In

that sense both the parts refer to

definite dates. So, there is no

question of finding out an intention

from other circumstances.

12. Whether the date was fixed or not

the plaintiff had notice that

performance is

refused and the date thereof are to be

established with reference to materials

and evidence to be brought on record.

The expression “date” used in Article

54 of the Schedule to the Act

definitely is suggestive of a specified

date in the calendar. We answer the

reference accordingly. The matter shall

now be placed before the Division Bench

for deciding the issue on merits.”

The decision may not assist the appellants in

the nature of the question which falls for decision

in the appeals before this Court.

83. The decision of this Court reported in Pashupati

 Nath Singh vs. Harihar Prasad Singh;63 relied upon by

the appellant arose under the Representation of

People Act, 1951. The petitioner therein was a

candidate for the election to the Bihar Legislative

Assembly. He filed his nomination paper on

16.1.1967. His nomination paper was rejected.

Petitioner challenged the election of the returned

63 AIR 1968 SC 1064

88

candidate, on the ground of illegal rejection of his

nomination paper. Section 36 of the Act provides for

scrutiny of nomination paper. The objection taken

which resulted in the nomination of the petitioner

being rejected was that he had not made and

subscribed the requisite oath or affirmation in the

form which is prescribed. Section 36

uses the words ‘the date fixed for scrutiny’ It is

interpreting the said words in Section 36 (2) (a)

that the Court held as follows:

“13. It seems to us that the expression

“on the date fixed for scrutiny” in

Section 36(2)(a) means “on the whole of

the day on which the scrutiny of

nomination has to take place”. In other

words, the qualification must exist

from the earliest moment of the day of

scrutiny. It will be noticed that on

this date the Returning Officer has to

decide the objections and the

objections have to be made by the other

candidates after examining the

nomination papers and in the light of

Section 36(2) of the Act and other

provisions. On the date of the scrutiny

the other candidates should be in a

position to raise all possible

objections before the scrutiny of a

particular nomination paper starts. In

a particular case, an objection may be

taken to the form of the oath; the form

of the oath may have been modified or

the oath may not have been sworn before

89

the person authorised in this behalf by

the Election Commission. It is not

necessary under Article 173 that the

person authorised by the Election

Commission should be the Returning

Officer.

14. In Paynter v. James [(1866-67) LR 2

CP 348] , Bovil, C.J., quoted, with

approval, the passage from the judgment

of Tindal, C.J.,

in Regy v. Humphery [10 Ad & E 335] ,

in which the following occurs:

“… we hold it therefore to be

unnecessary to refer to instances of

the legal meaning of the word ‘upon’

which, in different cases, may

undoubtedly either mean before the act

done to which it relates,

or simultaneously with the act done,

or after the act done, according as

reason and good sense require the

interpretation, with reference to the

context and the subject-matter of the

enactment.”

15. Bovill, C.J., observed that “that

is a very clear statement of the

various meaning of the word ‘on’ or

‘upon’.”

16. In this connection it must also be

borne in mind that law disregards, as

far as possible, fractions of the day.

It would lead to great confusion if it

were held that a candidate would be

entitled to qualify for being chosen to

fill a seat till the very end of the

date fixed for scrutiny of nominations.

If the learned Counsel for the

petitioner is right, the candidate

could ask the Returning Officer to wait

till 11.55p.m. on the date fixed for

90

the scrutiny to enable him to take the

oath.”

Clearly the context and the purpose of the

statute guided the court in holding that the law

disregards fractions and it must be noted that even

then in the said case it was laid down that the

fractions of the day are to be disregarded as far as

possible.

84. The decision of this Court on Vikram Singh alias

 Vicky and Another v. Union of India and Others64 is

relied upon to contend that the presumption runs that

the legislature is well aware of the circumstances

and the effect of the words that have been employed

by it. In other words, the contention appears to be

that since the word ‘the date’ is used in Section 15,

it must be given full effect. As far as the judgment

of this Court in The Government of Andhra Pradesh and

 Anotheer v. Hindustan Machine Tools Ltd.65 is

concerned, and the purpose for which it is relied

upon, the decision appears to be inapposite in the

facts. The contention taken is that it is competent

64 2015 (9) SCC 502

65 1975 (2) SCC 274

91

for the legislature to make law retrospectively and

as the rate of duty is to be determined as the rate

in force on the day

Section 15 is determinative. It is one thing to say

that the legislature may have the power to make a law

with retrospective effect subject to limitations

imposed by the Constitution and quite another to

contend that delegated legislation would carry

retrospective effect irrespective of power to make

such a law conferred by the parent enactment on the

delegate. More importantly the scheme of the Customs

Act and the Tariff Act and the Regulation 4(2) of the

2018 Regulations rule out the tenability of applying

the notification in the manner sought by the

appellants.

85. Reliance placed on the judgments Video

Electronics Pvt. Ltds and Another vs. State of Punjab

 and Another;66

, Tamil Nadu Electricity Board and

Another v. Status Spinning Mills Limited and

 Another;67 of this Court, taking the view that the

Schedule to an act is a part of the act and therefore

66 1990(3)SCC 87

67 2008(7) SCC 353

92

an amendment to the Schedule by virtue of such a

notification is an amendment to the Act itself and

therefore, the notification issued under Section 8A

of the Tariff Act partakes the character of

legislation, is clearly untenable, if it is intended

to convey that the notification issued under Section

8A of the Tariff Act is made by the legislature

itself. By its very nature, delegated legislation is

legislative in character but if it is to be a Central

Act within the meaning of Section 5 of General

Clauses Act, it must be made by the legislature.

Delegated legislation which is called administrative

legislation in England, is exercise of legislative

power by the executive. It is to be further noticed

the fact that the notification issued under Section

8A is in the exercise of its legislative power or

that it may have to be read in the same manner as if

it is a part of the Act, will not detract the Court

from ascertaining as to who is the author of the

exercise of the legislative power, namely, whether it

is an exercise of power by the legislature or by its

delegate. Upon answer to the question, namely, that

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the author of the legislative effort is the

executive, the question would necessarily arise as to

whether there is publication. In the scheme of the

Customs Act, the Tariff Act and the 2018 Regulations,

the time at which the notification under Section 8A

is published would indeed have relevance as already

found.

86. In this view of the matter, the Appeals are found

to be without merit and the same will stand

dismissed.

…………………………………J.

 [K. M. JOSEPH]

NEW DELHI:

DATED; SEPTEMBER 23, 2020

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