Girish Chandra Gupta, J.:— The subject matter of challenge in this appeal is a Judgement and order dated 11th February, 2016 passed by a learned Single Judge dismissing the writ petition holding that the petitioner/assessee is liable to pay the duty as per the notification dated 17 September, 2015.
2. Challenging the aforesaid order the writ petitioner/assessee has come up in appeal.
3. Briefly stated the facts and circumstances of the case are as follows:-
4. The writ petitioner imported 12000 MTs. of Crude Degummed Soyabean Oil of edible grade in bulk against various Bills of Lading all dated 21st June, 2015. Bills of Entry were lodged between 14 and 15 September, 2015. The ship carrying the goods however was berthed on 17 September, 2015. Under section 15 of the Customs Act, the Bills of Entry are deemed to have been presented on the date of entry inwards of the vessel. Therefore, there is no dispute that the bills of entry are deemed to have been lodged on 17 September, 2015.
5. The duty payable in the aforesaid case is 45% of the invoice value. However, there was an exemption granted by the Central Government in exercise of powers under section 25 of the Customs Act by reason whereof prior to 17 September, 2015, the duty payable was 7.5%. On 17 September, 2015 the exemption was reduced and the duty payable was fixed at 12.5%. The writ petitioner is interested in contending that the applicable rate of duty in this case is 7.5% whereas Revenue is interested in contending that the duty payable by the writ petitioner is 12.5%. The writ petition was filed praying for a writ in the nature of mandamus commanding the respondent authorities to clear the goods upon payment of duty @ 7.5% and further commanding them not to insist upon payment of duty @ 12.5%. Prayers in the nature of certiorari quashing the assessment and reassessment orders etc. were also made which have been dismissed by the learned Trial Court.
6. The contention put forward by Mr. Rawal, learned Senior Advocate, appearing for the writ petitioners/appellants is as follows:-Upon joint reading of Clauses (a) and (b) of Sub-section 4 it would appear that the following steps are required before a notification can be said to have come into force.
(a) The Central Government has to issue the notification for publication in the Official Gazette.
(b) The notification has to be published in the Official Gazette. and,
(c) The gazette notification has to be offered for sale.
7. Unless these three steps are complied with, according to him, the notification cannot be said to have come into force.
8. In this case the gazette notification was published on 17 September, 2015 but the same was not, according to him, offered for sale to the public on 17 September, 2015. The gazette notification, according to him, was offered for sale only on 21 September, 2015. In support of his submission he relied upon a letter dated 12 October, 2015 in response to the petitioner's application under the Right to Information Act, 2005, which is at page 130 of the petition, which goes to show that the notification dated 17 September, 2015 was received on 21 September, 2015 at 3.30 p.m at Kitab Mahal, Sale Counter of the concerned department. He also relied on a letter dated 30 October, 2015 also in answer to an application made by the writ petitioner under the RTI Act, 2005 from which it appears that the printed gazette was despatched from the Government of India Press, Mayapuri, New Delhi, for sale on 21 September, 2015. According to him, the documents appearing at pages 139 and 140 are in support of the contents of the letter dated 30 October, 2015. He added that the learned Trial Court by its order dated 21 January, 2016 had directed as follows:-
“A chance is afforded to the Union to produce the publication, if any, with evidence in support of the date of the publication of the relevant notification under clause (b) of Section 25(4) of the Act by the time the matter is taken up next a week hence.”
9. The Union of India in reply thereto used an affidavit affirmed on 28 January, 2016 and contented itself by disclosing a copy of a gazette notification to be published.
10. He, therefore, submitted that the order dated 21 January, 2016 was not carried out. He concluded by saying that since unimpeachable evidence, according to him, is that the notification was offered for sale only on 21 September, 2015 the necessary conclusion has to be that the notification came into effect on 21 September, 2015.
11. He submitted that reference in this regard may also be made to sub-section 5 of section 25 which also speaks of the necessity of the notification being offered for sale before the same can become operative. According to him, the affidavit used by the Union of India referred to hereinabove did not disclose any evidence.
12. Mr. Rawal relied upon a Judgement in the case of Param Industries Ltd. v. Union of India., reported in (2002) 150 E.L.T 3 (Karnataka).
13. He submitted that the Judgment in the case of Param Industries Ltd. was affirmed by the Supreme Court of India in Union of India v. Param Industries Ltd., reported in (2015) 321 E.L.T 192 (S.C).
14. Mr. Saraf, learned advocate, appearing for the Revenue submitted that the reading of Sub-sections 4 and 5 of Section 25 and the consequent construction thereof put forward by Mr. Rawal is incorrect.
15. He submitted that it is also not true that Revenue did not carry out the order dated 21 January, 2016 by which directions were issued for filing affidavit. He submitted that not only that affidavit was duly filed but also that the contents of such affidavit remained uncontroverted, in the sense that no opposition or reply thereto was filed by the writ petitioner. Nor even was any prayer made seeking leave to do so. He submitted that applying the rules of pleading the contents of the affidavit affirmed pursuant to the order dated 21 January, 2016 should be deemed to have been admitted.
16. Mr. Saraf, added that reliance placed upon the information obtained by the writ petitioner pursuant to its application under Right to Information Act, is of no significance. He submitted that in any event he does not admit the correctness of the information relied upon by the writ petitioner/appellant.
17. Mr. Saraf, submitted that the reliance placed upon the Judgment in the case of Param Industries Ltd. v. Union of India., reported in (2002) 150 E.L.T 3 (Karnataka), is altogether misplaced because the question which arises for determination in this case was not the question before the High Court of Karnataka. He submitted that the Judgment of the Hon'ble Supreme Court in an appeal arising out of the Judgment of the Karnataka High Court is also of no assistance to the writ petitioner/appellant because the question which has cropped up before this Court was not considered by Their Lordships. In the alternative he submitted that the judgement of the Apex Court does not militate against the contention of revenue. His further submission shall be adverted to during our discussion to be made hereafter.
18. section 25 of the Customs Act provides as follows:-
“25. Power to grant exemption from duty.—(1) If the Central Government is satisfied that it is necessary in the public interest so to do it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance), as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon.
[(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable.]
[(2-A) The Central Government may, if it considers it necessary or expedient so to do for the purpose of clarifying the scope or applicability of any notification issued under sub-section (1) or order issued under sub-section (2), insert an explanation in such notification or order, as the case may be, by notification in the Official Gazette, at any time within one year of issue of the notification under sub-section (1) or order under sub-section (2), and every such explanation shall have effect as if it had always been the part of the first such notification or order, as the case may be.]
[(3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty.
Explanation.—“Form or method”, in relation to a rate of duty of customs, means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable.]
[(4) Every notification issued under sub-section (1) [or sub-section (2-A)] 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.
(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.]
[(6) Notwithstanding anything contained in this Act, no duty shall be collected if the amount of duty leviable is equal to, or less than, one hundred rupees.]”
19. The question for consideration is as follows:-
20. When did the notification dated 17 September, 2015 issued under Section 25(1) of the Customs Act come into force?
21. Mr. Rawal, contended that there are three steps, quoted above, which have to be complied with before a notification can come into force. Whereas Mr. Saraf submitted that the question as to when does a notification come into force has to be answered by construing Sub-section 4 of Section 25 alone.
22. We already have quoted the section in extenso. For better understanding of Sub-section 4 we wish to reproduce the same as follows:-
a) Unless otherwise provided, every notification under sub-section 1 or subsection 2A shall come into force on the date of its issue by the Central Government for publication in the official gazette.
b) Every notification issued under Sub-section 1 or Sub-section 2A shall also be published and offered for sale by the Directorate of Publicity and Public Relation of the Board, New Delhi on the date of its issue by the Central Government.
23. A reading of the Sub-section 4 as above may lead to the inference that every notification issued under Sub-section 1 or Sub-section 2A shall come into force on the date of its issue by the Central Government for publication in the official gazette. This reading may appear to be slightly in conflict with Sub-section 1, which provides that notification in the official gazette is required to grant the exemption. But this is not a conflict because the provision in Sub-section 1 is qualified to that extent by Sub-section 4. The notification comes into force when it is issued for publication in the official gazette. It is not dependent upon any further act, or activity. The mandate that the notification shall also be published and offered for sale by the Directorate of Publicity and Public Relation by the Board on the date of its issue by the Central Government is a follow up action. But nonetheless that follow up action has to be performed on the date of issue of the notification by the Central Government. A question was raised whether this follow up action was taken? The answer to that would appear from the affidavit affirmed by Sri Souvik Sinha on 28 January, 2016 which is as follows:-
“I state that the Notification being No. 45-46/2015-Customs dated 17.09.2015 was forwarded by the Under Secretary Government of India to Directorate of Publicity and Public Relations, herein after referred to as DPPR on the same date. The copy of Notifications are regularly received/obtained/collected by officials/staff of DPPR from Board's Office and the same is offered by way of sale to public by photocopying the same on the same date, in this case 17.09.2015 across the sale counter of DPPR located at Room - G-44, Ground Floor, C.R Building, I.P Estate, New Delhi-110 109.
I state that the above Notification was received by DPPR on 17.09.2015 Photocopy of the said Notification is annexed hereto and marked as annexure “R-1”.
I state that the according to Section 25(4)(b) of the Customs Act, 1962 the said Notification was published on 17.09.2015 and offered for sale on 17.09.2015 by the Directorate of Publicity and Public Relations of the Board, New Delhi. However, on 17.09.2015 no person came to the sale counter of DPPR to purchase the above said Notification.”
24. The contents of the aforesaid affidavit have remained uncontroverted.
25. Mr. Saraf is right in contending that under Order 8 Rule 5 of the Code of Civil Procedure every allegation of fact in a plaint or a pleading if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant or the respondent as the case may be shall be taken to be admitted except as against a person under disability.
26. The writ petitioner obviously is not under any disability. Far from denying the contents of the aforesaid affidavit no opposition thereto was filed. He also drew our attention to Section 58 of the Evidence Act, which reads as follows:-
“58. Facts admitted need not be proved.—No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
27. There is thus ample evidence to hold that the mandate that the notification issued under Sub-section 1 or Sub-section 2A shall also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relation of the Board was duly complied with. The learned Trial Court held in this regard as follows:-
“The Union has disclosed in an affidavit that the notification was published in the Official Gazette on September 17, 2015. There is no creditable denial to such assertion. It is not the petitioners' case that the relevant Official Gazette is ante-dated. The Union has also claimed in the affidavit that though the Official Gazette containing the notification may not have been offered for sale on September 17, 2015, but copies of the notification were put on sale, nonetheless. The Union says that it has no cash memo to show since no one purchased the notification on September 17, 2015. There is no reason to disbelieve the Union, nor has anything been shown by the petitioners to detract therefrom.”
28. A distinction between publication in the official gazette appearing in Clause (a) of sub-section 4 and the mandate appearing in Clause (b) of Sub-section 4 for publication and offer for sale by the Directorate of Publicity and Public Relation of the Board is discernable upon comparison of the two clauses namely clause (a) and Clause (b). The Directorate of Publicity and Public Relation is a limb of the board itself. ‘Board’ has been defined under Section 2 of the Customs Act as the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963. Therefore, issuance of a notification by the Central Government for publication in the official gazette is enough for the notification to come into force but the follow up action is equally necessary which is to be done by Directorate of Publicity and Public Relations which is a wing of the Central Board of Excise constituted under the Central Board of Revenue Act, 1963.
29. Mr. Rawal was at pains to show that the copy of the official gazette was not available before 21 September, 2015 as would appear from the submissions recorded herein above. Copy of the official gazette may or may not have been available before 21 September, 2015. Nothing really turns on that. Once the fact that the notification was also published and offered for sale on 17 September, 2015 by the Directorate of Publicity and Public Relation of the Board is established there is no scope for any further controversy.
30. We may now notice the judgment in the case of Param Industries Ltd. (Supra) relied upon by Mr. Rawal. The question for consideration before the Karnataka High Court was “did the notification under Section 14(2) of the Customs Act come into effect on 3rd August, 2001? Or did the same come into effect on 7 August, 2001 when copy of a gazette notification was received by the Customs authorities?
31. Section 14 of the Customs Act is a provision for valuation of goods. Subsection 2 of Section 14 provides as follows:-
“14. Valuation of goods.—(1)…
(2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value.
Explanation.—For the purposes of this section—
(a) “rate of exchange” means the rate of exchange—
(i) determined by the Board, or
(ii) ascertained in such manner as the Board may direct,
for the conversion of Indian currency into foreign currency or foreign currency into Indian currency;
(a) “foreign currency” and “Indian currency” have the meanings respectively assigned to them in clause (m) and clause (q) of Section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999).]”
32. Ordinarily, under Sub-section 1 of Section 14 the transaction value is the basis unless the parties are related to each other. There is, however, provision in Sub-section 1 of Section 14 for addition to the transaction value any amount paid or payable for costs and services etc. But Sub-section 2 is a departure from sub-section 1. The transaction value provided for in Sub-section 1 is subject to tariff value to be fixed by the Board under Sub-section 2. Such a notification under Section 14(2) was issued on 3 August, 2001 which was a Friday. The following Saturday and Sunday were holidays. The notification was issued on 3 August, 2001 at 11.44 P.M
33. Mr. Saraf, contends that in the case of Param Industries Ltd. (supra) the Hon'ble High Court of Karnataka erred in taking the view as follows:-
“The learned Central Government Standing Counsel has not been able to show that it was published on 3.8.2001 and they also offered this notification for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi as per the Amendment. For our satisfaction, we granted time to the Central Government Standing Counsel to place the records. It is true that Gazette notification is admissible being the official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act unless contrary is proved. Despite directions the respondents have not chosen to produce the records to show that averment made in the Writ Petitions is false and that notification was published on 3.8.2001 itself.”
34. He contended that under Section 81 of the Evidence Act there is a presumption in favour of a gazette which reads as follows:-
“81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.—The Court shall presume the genuineness of every document purporting to be the London Gazette or 1[any Official Gazette, or the Government Gazette] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament 2[of the United Kingdom] printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.”
35. He added that there is also a presumption under Section 114 of the Evidence Act that all official and judicial acts were regularly performed. The Hon'ble High Court of Karnataka inspite of the aforesaid presumption in law held that the respondents did not produce records to show that averment made in the writ petition was false.
36. Mr. Saraf contended that when there is a presumption in law as regards correctness of a fact it was not for the State to prove the negative. It was in that case the burden of the petitioner to rebut the presumption that the gazette publication was not made on 3 August, 2001.
37. He contended that the Hon'ble Karnataka High Court also fell into an error in taking assistance of Sub-sections 4 and 5 of Section 25 for the purpose of construing the provision of Section 14 of the Customs Act. Section 14 and Section 25 provide for two different situations and two different mechanism have been provided. Section 25 could not have been resorted to in interpreting Section 14 as was done by the Karnataka High Court. It is not, however necessary for us to go into that question because the Apex Court in the case of Union of India v. Param Industries Ltd. (supra) did not go into the same as would appear from paragraph 2 of the report which reads as follows:-
“There was some dispute as to whether the notification was published on 3-8-2011 itself or it was published on a later date. However, from the record, it gets revealed that the notification was sent for publication after the normal office hours, i.e much after 5 p.m on 3-8-2001. It was almost at the midnight, may be few minutes before 12 in the night. Even if it is to be treated as notification having been published on 3-8-2001 itself, i.e, just before the midnight, an issue has arisen as to whether it could be made effective qua the goods which were already cleared during the day time on the basis of earlier notification. However it is not necessary to go into this issue at all.”
38. Paragraph 3 of the aforesaid judgment reads as follows:-
39. Even conceding that the Apex Court in the case of Union of India v. Param Industries Ltd. (supra) upheld the judgement of High Court and laid down the requirement in paragraph 3 of the Judgment, the writ petitioner cannot succeed because there is evidence which has remained uncontroverted to show that the notification was duly published in the official gazette on 17 September, 2015 and the notification was also offered for sale on 17 September, 2015 by the Directorate for Publicity and Public Relation of the board.
40. Even if the two conditions are deemed to be mandatory there is indeed evidence to show that both of them were duly complied with. The official gazette dated 17 September, 2015 was produced before us by Mr. Saraf. As regards the other condition, we have indicated above that the same was duly complied with.
41. We are unable to accept the submission of Mr. Rawal that both Sub-section (4) and (5) have to be read together. The Sub-section (5) of Section 25 deals with a situation in which the notification has been issued in advance and is intended to become operative at a future date.
42. For the aforesaid reasons, we find no merit in the appeal. The appeal is dismissed and the question formulated is answered by holding that the notification came into force on 17 September, 2015.
43. Parties shall, however, bear their own costs.