UNION OF INDIA & ORS. versus M/S G S CHATHA RICE MILLS & ANR.

UNION OF INDIA & ORS.

M/S S CHATHA RICE MILLS & ANR.

(Civil Appeal No 3249 of 2020)

SEPTEMBER 23, 2020

[DR DHANANJAYA Y CHANDRACHUD,INDU MALHOTRA AND K. M. JOSEPH, JJ.]

Customs Tariff Act, 1975: ss.8A and 11A – Customs Act, 1962– ss.12, 15, 17, 46 and 47 – Assessment of duty – Shift from manualto electronic form of governance – Impact of – Publication ofnotification on e-gazette – Time of publication on e-gazette –Relevance of – Starting point for enforceability of e-notification –On 16 February 2019, the Union Government issued notification(Notification 5/2019) u/s.8A of the Customs Tariff Act – Thenotification introduced tariff entry by which all goods importedfrom Pakistan were subjected to enhanced customs duty – Thenotification was published through electronic mode i.e. uploadedon the e-Gazette late in the evening of 16th Feb 2019 at 20:46:58hours – Importers concerned, who had imported goods fromPakistan, had presented their bills of entry and completed the processof “self assessment” before the notification enhancing the rate ofduty was issued and uploaded – Whether Notification 5/2019 wasapplicable with retrospective effect and the importers concernedwere liable to pay duty on the basis of enhanced rate under theNotification – Held: With the change in the manner of publishinggazette notifications from analog to digital, the precise time whenthe gazette is published in the electronic mode assumes significance– Notification 5/2019 must come into operation with reference tothe point of time of the day when it was published on the e-gazette– Notification 5/2019, which is akin to the exercise of delegatedlegislative power, under the emergency power to notify and revisetariff duty under s.8A of the Customs Tariff Act, cannot operateretrospectively, unless authorized by statute – In the era of theelectronic publication of gazette notifications and electronic filingof bills of entry, the revised rate of import duty under the Notification5/2019 applies to bills of entry presented for home consumption

DEF

Aafter the notification was uploaded in the e-Gazette at 20:46:58hours on 16 February 2019 – In the instant case, the twin conditionsof s.15 of the Customs Act, 1962 stood determined prior to theissuance of Notification 5/2019 on 16 February 2019 at 20:46:58hours – The rate of duty which was applicable was crystallized atthe time and on the date of the presentation of the bills of entry inBterms of provisions of s.15 of the Customs Act read with Regulation4(2) of the Regulations of 2018 – Power of reassessment unders.17(4) could not have been exercised since this is not case wherethere was an incorrect self-assessment of duty – The duty wascorrectly assessed at the time of self-assessment in terms of the dutyCwhich was in force on that date and at the time – Subsequentpublication of the notification bearing 5/2019 did not furnish avalid basis for re-assessment – Bill of Entry (Electronic IntegratedDeclaration and Paperless Processing) Regulations, 2018 –Information Technology Act, 2000 – ss.13 and 8 – InformationTechnology (Electronic Service Delivery) Rules 2011 – r.5(1) –DNotifications/Circulars/Government Orders.Circulars/Government Orders/Notifications: Emergencypower conferred upon the Central government u/s.8A of the CustomsTariff Act to increase import duties “in respect of any article includedin the first schedule” – Notification enhancing rate of duty u/s.8AEof the Customs Tariff Act – Applicability of – Retrospective orprospective – Held: rule framed by the delegate of the legislaturedoes not have retrospective effect unless the statutory provisionunder which it is framed allows retrospectivity either by the use ofspecific words to that effect or by necessary implication –FEntrustment of the power to issue notification enhancing the rateof duty u/s.8A is not accompanied by statutory entrustment ofauthority to the Central government to exercise it with retrospectiveeffect – notification u/s.8A(1), even though it has the effect ofamending the First Schedule to the Customs Tariff Act, takes effectprospectively – Customs Tariff Act, 1975 – s.8A – DelegatedGlegislation.Circulars/Government Orders/Notifications: E-notification –Publication through e-gazettes – Basis for – Held: s.8 of the

Information Technology Act creates legal basis for publication oflaws through e-gazettes – Information Technology Act, 2000 – s.8.

Legislation: Delegated legislation – Distinction betweenplenary powers entrusted to Parliament and the State legislaturesto enact legislation with both prospective and retrospective effect,and the power entrusted to delegate of the legislature to framesubordinate legislation – Constitution of India – Arts. 245 and 246.

Legislature: When legislature is silent on subject – Held:Legislature does not always say everything on the subject – When itenacts law, every conceivable eventuality which may arise in thefuture may not be present to the mind of the lawmaker – Legislativesilences create spaces for creativity – Between interstices oflegislative spaces and silences, the law is shaped by the robustapplication of common sense.

General Clauses Act 1897: s.5(3) – Coming into operation ofan enactment – s.5(3) makes it abundantly clear that it is only a‘Central Act’ or ‘Regulation’ which comes into operation immediatelyon the expiration of the day preceding its commencement.

General Clauses Act, 1897: s.3(50) – Notification issued byCentral government under sub-section (1) of s.8A of the CustomsTariff Act – Held: Does not fulfil the description of Regulationunder s.3(50) of the General Clauses Act – The expression isconfined to specific species of Regulations – The definition doesnot extend to all subordinate legislation or to notifications issuedby delegate of the legislature acting in pursuance of statutoryauthority – Customs Tariff Act, 1975 – s.8A – Circulars/GovernmentOrders/Notifications.

General Clauses Act, 1897: s.3(7) – Notification issued byCentral government u/s.8A of the Customs Tariff Act – Held: Is notan Act of Parliament – The Central government as delegate of thelegislature is entrusted with the authority to issue such notification– The mere fact that piece of delegated legislation has been issuedin exercise of legislatively conferred power does not bring thedelegated legislation within the ambit of the phrase “Central Act”as defined in s.3(7) of the General Clauses Act – Customs TariffAct, 1975 – s.8A – Circulars/Government Orders/Notifications –Legislation – Delegated legislation.

ATax/Taxation: Imposition of tax – Three stages encompassingthe same, namely, declaration of liability, assessment, and methodsof recovery.

Dismissing the appeals, the Court

HELD (per Dr. Y Chandrachud, J. [for himself and InduBMalhotra, J.]):

1.1. In interpreting the statute, the court is guided by theterms of its provisions, the purpose underlying their adoptionand the scheme which emerges from interrelated provisions andthe nature of the provision. The court in the present case isCinterpreting the terms of fiscal levy. The court here has toconstrue the scheme and provisions of the Customs Act and theirrelationship with the provisions of the Customs Tariff Act. [Para34]

1.2. The Union of India is textually right in emphasizingDthat Section 15(1) of the Customs Act, 1962 contains referenceto date and not time. But there are two responses to this line ofapproaching the issue. First, the legislature does not always sayeverything on the subject. When it enacts law, every conceivableeventuality which may arise in the future may not be present toEthe mind of the lawmaker. Legislative silences create spaces forcreativity. 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 newtechnology replaces old and outmoded ways of functioning. Thevirtual world of electronic filings was not on the horizon whenFParliament enacted the Customs Act in 1962. Yet the Parliamenthas responded to the rapid changes which have been broughtabout by the adoption of technology in governance. In theprovisions of Section 17 and Section 46 of the Customs Act, 1962,the impact of ICT-based governance has been recognized by theGlegislature in providing for the presentation of bills of entry inthe electronic form on the customs automated EDI system. Theconsiderations which Parliament had in its view in providing forcrucial amendments to the statutory scheme by moving frommanual to electronic forms of governance in the assessment of

duties must not be ignored. Tax administration must leave behindthe culture of an age in which the assessment of duty was wroughtwith delays, discretion, doubt and sometimes, the dubious. Theinterpretation of the court must aid in establishing system whichensures certainty for citizens, ease of application and efficiencyof administration. [Para 35]

2.1. notification under Section 8A(1) of the Customs TariffAct, even though it has the effect of amending the First Scheduleto the Customs Tariff Act, takes effect prospectively. Section 8Adoes not confer upon the notification an operation anterior to itsmaking. In the language of the law, its operation is prospective.[Para 36]

2.2. The provisions of Sections 15(1)(a), 17, 46(1) and47(2)(a) of the Customs Act constitute one composite scheme.As result of the modalities prescribed for the electronicpresentation of the bill of entry and self-assessment after theentry of the electronic declaration on the customs automatedsystem, bill of entry number is generated by the EDI systemfor the declaration. Regulation 4(2) of the Bill of Entry (ElectronicIntegrated Declaration and Paperless Processing) Regulations,2018 provides for deeming fiction in regard to the filing of thebill of entry and the completion of self-assessment. Thesubmission on behalf of the Union of India, simply put, is thatbecause notification 5/2019 was issued on 16 February 2019, thecourt must regardless of the time at which it was uploaded on thee-Gazette treat it as being in existence with effect from midnightor 0000 hours on 16 February 2019. The consequence of thisinterpretation would be to do violence to the language of Section8A(1) of the Customs Tariff Act, and to disregard the meaning,intent and purpose underlying the adoption of provisions in theCustoms Act in regard to the electronic filing of the bill of entryand the completion of self-assessment. [Para 36]3.1. notification which is issued in terms of the provisionsof Sub-section (1) of Section 8A the Customs Tariff Act 1975 isakin to the exercise of delegated legislative power. In issuing anotification under Sub-section (1) of Section 8A, the Central

Agovernment exercises power as delegate of the legislature.[Para 39]

3.2. Section 5(3) of the General Clauses Act 1897 makes itabundantly clear that it is only ‘Central Act’ or ‘Regulation’which comes into operation immediately on the expiration of theBday preceding its commencement. notification issued by theCentral government under sub-section (1) of Section 8A doesnot fulfill the description of Regulation under Section 3(50) ofthe General Clauses Act. The expression is confined to specificspecies of Regulations. The definition does not extend to allsubordinate legislation or to notifications issued by delegate ofCthe legislature acting in pursuance of statutory authority. [Paras40, 41]

3.3. The expression “Central Act” is defined by using theexpressions “shall mean” and “shall include”. The use of theseexpressions indicates that the definition is exhaustive. InsofarDas is relevant, the expression ‘Central Act’ is defined to mean anAct of Parliament. notification which has been issued underSub-section (1) of Section 8A of the Customs Tariff Act is not anAct of Parliament. The notification has the effect of amending theFirst schedule to the Customs Tariff Act. The Central governmentEas delegate of the legislature has been entrusted with theauthority to issue such notification. That does not make thenotification an Act of Parliament. [Para 42]

3.4. The mere fact that piece of delegated legislation hasbeen issued in exercise of legislatively conferred power doesFnot bring the delegated legislation within the ambit of the phrase“Central Act” as defined in Section 3(7) of the General ClausesAct. [Para 43]

3.5. Notification 05/2019 was issued by the CentralGovernment under the delegated authority to increase emergencyGtariff duties under Section 8A of the Customs Tariff Act, 1975.The notification has been issued in pursuance of statutory power.The notification has the effect of enhancing the rate of dutyprescribed in the First Schedule to the Customs Tariff Act. That

does not transform the notification which has been issued inpursuance of statutory authority into ‘Central Act’. [Para 46]

4.1. While enacting the Information Technology Act, 2000,Parliament envisioned regime of electronic governance. Thelegislation recognizes that information technology is facilitativeinstrument for creating an efficient framework for e-commerce.[Para 47]

4.2. The rate of customs duty is determined on the date onwhich the bill of entry for home consumption is presented (Section15 of the Customs Act). The presentation of the bill of entry hasto be made electronically (Section 46 of the Customs Act readwith the 2018 Regulations). The presentation is required to bemade on the customs automated system. The provisions in theCustoms Act for the electronic presentation of the bill of entryfor home consumption and for self-assessment have to be readin the context of Section 13 of the Information Technology Actwhich recognizes “the dispatch of an electronic record” and “thetime of receipt of an electronic record”. The legal regimeenvisaging the electronic presentation of records, such as thepresentation of bill of entry, has been imparted precision as aresult of the enabling framework of the Information TechnologyAct under which these records are maintained. The presentationof the bill of entry under Section 46 is made electronically and iscaptured with time stamps in terms of the requirements of theInformation Technology Act read with Rule 5(1) of the InformationTechnology (Electronic Service Delivery) Rules 2011. [Para 50]4.3. Section 8 of the Information Technology Act, 2000creates legal basis for the publication of laws through e-gazettes.On 30 September 2015, the Ministry of Urban Developmentissued an Office Memorandum which discontinued the practiceof physical printing and replaced it with the electronic gazette.[Paras 51, 52]

4.4. With the change in the manner of publishing gazettenotifications from analog to digital, the precise time when thegazette is published in the electronic mode assumes significance.Notification 5/2019, which is akin to the exercise of delegated

Alegislative power, under the emergency power to notify and revisetariff duty under Section 8A of the Customs Tariff Act, 1975, cannotoperate retrospectively, unless authorized by statute. In the eraof the electronic publication of gazette notifications and electronicfiling of bills of entry, the revised rate of import duty under theNotification 5/2019 applies to bills of entry presented for homeBconsumption after the notification was uploaded in the e-Gazetteat 20:46:58 hours on 16 February 2019. [Para 58]

5.1. Section 8A of the Customs Tariff Act confers anemergency power upon the Central government to increaseimport duties “in respect of any article included in the firstCschedule”. The exercise of the power under Section 8A iscontingent 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 totake immediate action. The Central government in the exerciseDof this power may by notification in the official gazette direct anamendment of the schedule to be made “so as to provide for anincrease in the import duty leviable on such article to such extentas it thinks necessary”. Section 8A does not contain languageindicative of legislative intent to authorize the Centralgovernment to relate back the exercise of the power to periodEprior to its exercise. The exercise of the power under Section8A (2) is governed by the prescriptions contained in sub-sections(3) and (4) of Section 7. The conferment of the power has notbeen made retrospective either expressly or by necessaryimplication. [Para 62]F

5.2. The entrustment of the power to issue notificationenhancing the rate of duty under Section 8A is not accompaniedby statutory entrustment of authority to the Central governmentto exercise it with retrospective effect. An enhancement of therate of duty pursuant to the exercise of power under Section 8AGcan only be prospective. [Para 63]

5.3. Parliament and the state legislatures are entrusted withthe power to enact legislation under Articles 245 and 246 of theConstitution. Parliament and the state legislatures possess the

plenary power to enact legislation, with prospective andretrospective effect, subject to due observance of constitutionalrequirements. notification issued by the government pursuantto the conferment of statutory power is distinct from an act of thelegislature. Administrative notifications, even when they areissued in pursuance of an enabling statutory framework, aresubject to the statute. Delegated legislation does not lose itscharacter even when it has the same force and effect as if it iscontained in the statute. This is settled position of law. [Para64]5.4. In empowering the Central Government to exercisepower under Section 8A of the Customs Tariff Act, Parliamenthas not either expressly or by necessary implication indicatedthat notification once issued will have force and effect anteriorin time. The provisions of sub-sections (3) and (4) of Section 7 ofthe Customs Tariff Act bring to bear legislative oversight andsupervision over the power which is entrusted to the CentralGovernment under Section 8A. That however does not lead tothe inference that notification under Section 8A has retrospectiveeffect. Plainly, notification enhancing the rate of duty underSection 8A has prospective effect. rule framed by the delegateof the legislature does not have retrospective effect unless thestatutory provision under which it is framed allows retrospectivityeither by the use of specific words to that effect or by necessaryimplication. [Para 64]

5.5. The fact that the rules had been framed in pursuanceof resolution passed by the legislature or that they have to beplaced on the table of the legislative body would not lead to aninference that the legislature had authorized the framing ofsubordinate legislation with retrospective effect. This preciselyis the principle which applies in construing whether the powerwhich is conferred by Section 8A of the Customs Tariff Act isretrospective. The provisions of sub-sections (3) and (4) of Section7, which are made applicable by sub-section (2) of Section 8A,are to ensure Parliamentary oversight. But that does not enablethe Central Government to exercise the power under section 8Awith retrospective effect. [Para 65]

CDE

A6.1.The imposition of tax encompasses three stages.There is, first, the declaration of liability which determines “whatpersons in respect of what property are liable”. The second isthe stage of assessment. Liability, it is well settled, does notdepend on assessment since ex-hypothesi, that has already beenfixed. Assessment particularizes the exact sum which person isBliable to pay. Third (and the last) are the methods of recovery if aperson who is taxed does not voluntarily pay. [Para 66]

6.2. In the present case the twin conditions of Section 15 ofthe Customs Act, 1962 stood determined prior to the issuance ofNotification 5/2019 on 16 February 2019 at 20:46:58 hours. TheCrate of duty was determined by the presentation of the bills ofentry for home consumption in the electronic form under Section46. Self-assessment was on the basis of rate of duty which was inforce on the date and at the time of presentation of the bills ofentry for home consumption. This could not have been altered inDthe purported exercise of the power of re-assessment underSection 17 or at the time of the clearance of the goods for homeconsumption under Section 47. The rate of duty which wasapplicable was crystallized at the time and on the date of thepresentation of the bills of entry in terms of the provisions ofSection 15 read with Regulation 4(2) of the Regulations of 2018.EThe power of reassessment under Section 17(4) could not havebeen exercised since this is not case where there was anincorrect self-assessment of duty. The duty was correctly assessedat the time of self-assessment in terms of the duty which was inforce on that date and at the time. The subsequent publication ofFthe notification bearing 5/2019 did not furnish valid basis forre-assessment. [Para 67]

Union of India v. Param Industries Limited (2016) 16SCC 692 and New Bank of India Employees’ Union v.Union of India (1996) 8 SCC 407 : [1996] 3 SCR 322G– distinguished.

Chief Inspector of Mines v. Lala Karam Chand ThaparAIR 1961 SC 838 : [1962] 1 SCR 9; K I Shepard v.Union of India (1987) 4 SCC 431 : [1988] 1 SCR 188;Hukum Chand v. Union of India (1972) 2 SCC 601 :

[1973] 1 SCR 896 ; Regional Transport Officer,Chittoor v. Associated Transport Madras (1980) 4 SCC597 : [1981] 1 SCR 627 ; Federation of Indian MineralsIndustries v.Union of India (2017) 16 SCC 186: [2017]12 SCR 724 ; State of Rajasthan v. Basant Agrotech(India) Ltd. (2013) 15 SCC 1 : [2013] 17 SCR 395; AV Fernandez v. State of Kerala [1957] SCR 837 andDeputy CTO v. Sha Sukraj Peerajee [1967] 3 SCR 661– relied on.

Bharat Surfactants (Private) Limited v. Union of India(1989) 4 SCC 21:[1989] 3 SCR 367; PriyankaOverseas Pvt. Ltd. v. Union of India 1991 Supp (1) SCC102:[1990] 3 Suppl. SCR 138; Dhiraj Lal Vohra v.Union of India 1993 Supp (3) SCC 453: [1992] 3 Suppl.SCR 494; D.C.M. v. Union of India 1995 Supp (3) SCC223; Raj Kumar Yadav v. Samir Kumar Mahaseth (2005)3 SCC 601: [2005] 2 SCR 670; New India AssuranceCo. Ltd. v. Ram Dayal (1990) 2 SCC 680:[1990] 2SCR 570; National Insurance Company Limited v. GeetaDevi (2010) 15 SCC 670; Ahmadsahab Abdul Mulla(2) Dead by proposed Lrs. v. Bibijan (2009) 5 SCC462: [2009] 5 SCR 476; Pashupati Nath Singh v.Harihar Prasad Singh [1968] 2 SCR 812; VideoElectronics (P) Ltd v. State of Punjab (1990) 3 SCC87:[1989] 2 Suppl. SCR 731; TN Electricity Board v.Status Spinning Mills Limited (2008) 7 SCC 353:[2008]9 SCR 870; Kolhapur Canesugar Works Ltd. v. Unionof India (UOI) AIR 2000 SC 811 : [2000] 1 SCR 518;Securities and Exchange Board of India v. MagnumEquity Services Ltd. (2015) 16 SCC 721; M.D. OverseasIndustries v. Union of India W.P. (C) 7838/2017 decidedon 15 October 2019 (Delhi High Court); Ruchi SoyaIndustries v. Union of India W.P. No. 21207 of 2018decided on 14 July 2020 (Madras High Court); ParamIndustries Ltd. v. Union of India 2002 (150) E.L.T. 3(Kar); Pankaj Jain Agencies v Union of India (1994) 5SCC 198:[1994] 1 Suppl. SCR 602; and Union of India

582SUPREME COURT REPORTS

[2020] 14 S.C.R.

Av. Ganesh Das Bhojraj (2000) 9 SCC 461:[2000] 1SCR 1081 – referred to.

Re Court Fees ILR (1923) 46 Mad 685 and Chatturamv. CIT, Bihar (1947) FCR 116 (66) - referred to.

Whitney v. Commissioners of Inland Revenue (1926) ACB37 – referred to.

HELD (per K.M. Joseph, J.) [Concurring]:

1. The Notification which came to be issued late in theevening on 16.02.2019 was admittedly issued under Section 8ACof the Tariff Act. It is species of delegated legislation. It is onlywith the publication effected at 20:46:58 hrs. on 16.02.2019, theNotification issued under Section 8A, increasing the rate of importduty, came into force. [Paras 30, 33]

2.1. The notification issued under Section 8A of the TariffDAct is not made by Central Legislature, namely, the Parliament.The notification is also not regulation as defined in GeneralClauses Act. There is no merit in the contention that by virtue ofSection of 5(3) of the General Clauses Act, the notification mustbe treated as effective from the point of time immediately aftermid night on 15/16 February, 2019. [Para 60]E2.2. Generally, the law frowns upon determining day withreference to its fractions. Undoubtedly, in the case of CentralAct or Regulation, the principle is statutorily incorporated inSection 5(3), that unless contrary intention appears, it beginsits journey in the Statute Book from the first point of time pastFthe stroke of the previous midnight. Section 5(3) does not applyto the notification which is form of delegated legislation. [Para68]3.1. The law which is made by the legislature is to be treateddifferently from delegated legislation. law if made by ParliamentGincluding change in the rate of duty in the Customs-Tariff Actwould involve process which is attended by certain level ofpublicity. [Para 75]

3.2. There is process and time involved in Parliamentwhich is unlike what happens in the case of delegated legislationof the sort in particular, projected in these cases, namely, anotification issued by the executive under Section 8A. It is onthis basis that the law made by the legislature is taken as knownto the public and mere assent of the President would suffice andthe need to make any delegated legislation known by publicationbefore it becomes effective is insisted upon. Publication in thecase of delegated legislation is based on rationale. [Para 75]

4. In the context of the Customs Act, and having regard tothe Scheme, which, in the case of import duty, consists of filing ofBill of Entry for home consumption, self-assessment and paymentof duty on the basis of the same and the rate being clearly fixedwith reference to the particular point of time when the Bill ofEntry is presented and there is deemed presentation and evena deemed assessment, which is otherwise in order, and bearingin mind the principle that Section 8A of the Customs Tariff Act,1975 does not provide power for increase of rate of duty withretrospective effect, the Notification must be treated as havingcoming into force not before its publication which is at 20:46:58hrs. on 16.02.2019. This would necessarily mean that theNotification cannot be used to alter the rate of duty on the basisof which, in fact, there was presentation of Bill of Entry severalhours ago, the self-assessment was done and what is more, theself-assessment was completed under Regulation 4(2) of the 2018Regulations. There cannot be reassessment. The interpretationbased on time of publication is in harmony with view that accordsrespect for vested rights. [Para 78]

5. Once it is found that the notification upon publicationwould take effect from the time of its publication then in regardto the bills of entries which stand presented within the meaningof Section 46 of the Customs Act read with 4(2) of the 2018Regulations, earlier to such publication, the rate of duty in regardto the same would be only the rate of duty which prevailed at thetime of the deemed presentation under Regulation 4(2) of theBill of Entry (Electronic Integrated Declaration and PaperlessProcessing) Regulations, 2018. [Para 79]

A6. While the expression “otherwise” in Section 17(4) ofthe Customs Act, 1962, may be capable of taking care of situationswhich are not covered by the preceding expressions, viz.,verification, examination, attesting of the goods, it cannot meanthat it will empower the Officer to alter the rate of duty which isprevalent at the time of the self-assessment following the dueBpresentation of the Bill of Entry. If it is otherwise, it will be opento the Department to reopen cases of concluded assessments byvirtue of the deemed completion of assessment under Regulation4(2) without any legal justification. That would be plainlyimpermissible being illegal. [Para 80]C7. By its very nature, delegated legislation is legislative incharacter but if it is to be Central Act within the meaning ofSection 5 of General Clauses Act, it must be made by thelegislature. Delegated legislation which is called administrativelegislation in England, is exercise of legislative power by theDexecutive. The fact that the notification issued under Section 8Ais in the exercise of its legislative power or that it may have to beread in the same manner as if it is part of the Act, will not detractthe Court from ascertaining as to who is the author of the exerciseof the legislative power, namely, whether it is an exercise of powerby the legislature or by its delegate. Upon answer to the question,Enamely, that the author of the legislative effort is the executive,the question would necessarily arise as to whether there ispublication. In the scheme of the Customs Act, the Tariff Act andthe 2018 Regulations, the time at which the notification underSection 8A is published would indeed have relevance. [Para 85]F

M/s. Bharat Surfactnts (P) Ltd. v. Union of India 1989(4) SCC 21: [1989] 3 SCR 367; Priyanka Overseas(P) Ltd. v. Union of India 1991 Suppl. (1) SCC 102:[1990] 3 Suppl. SCR 138; Dhiraj Lal H. Vohra v. Unionof India 1993 Suppl. (3) SCC 453:[1992] 3 Suppl.GSCR 494; D.C.M. Ltd. and Another v.. Union of India1995 Suppl. (3) SCC 223; Ahmadsahab Abdul Mulla(2) (Dead) By Proposed LRs. v. Bibijan and others 2009(5) SCC 462: [2009] 5 SCR 476; and Government ofAndhra Pradesh and Another v. Hindustan MachineTools Ltd. 1975 (2) SCC 274: [1975] SCR 394 –Hdistinguished.

Collector of Central Excise v. New Tobacco Companyand others (1998) 144 CTR (SC) 618 – held not goodlaw.

Union of India and others v. Ganesh Das Bhojraj 2000(9) SCC 461:[2000] 1 SCR 1081- held applicable.

I.T.C. Bhadrachalam Paperboards and another v.Mandal Revenue Officer andothers (1996) 6 SCC 634:[1996] 5 Suppl. SCR 643; B.K. Srinivasan v. State ofKarnataka (1987) 1 SCC 658: [1987] 1 SCR 1054;and M/s. Pankaj Jain Agencies v. Union of India andothers (1994) 5 SCC 198: [1994] 1 Suppl. SCR 602 –relied on.

Asia Tobacco Company Limited v. Union of India andothers (1985)155 ITR 568 (Mad); In Re: Court FeesAIR 1924 Madras 257; Jasbir Singh v. Union of India(1995) ILR 2 Delhi 399; New India Assurance CompanyLimited v. Ram Dayal and Others (1990) 2 SCC680:[1990] 2 SCR 570; Oriental Insurance CompanyLimited v. Porselvi and Another 1997 (1) SCC 66:[1996] 8 Suppl. SCR 929; Oriental Insurance CompanyLimited v. Sunita Rathi and Others 1998 (1) SCC365:[1997] 6 Suppl. SCR 200; National InsuranceCompany Limited v. Geeta Devi and Others 2010 (15)SCC 670; Raj Kumar Yadav v. Samir Kumar Mahaseth2005 (3) SCC 601: [2005] 2 SCR 670; Vikram Singhalias Vicky and Another v. Union of India and Others2015 (9) SCC 502: [2015] 10 SCR 816; The VideoElectronics Pvt. Ltds and Another v. State of Punjaband Another 1990 (3) SCC 87:[1989] 2 Suppl.SCR 731; Tamil Nadu Electricity Board and Another v.Status Spinning Mills Limited and Another 2008(7) SCC353: [2008] 9 SCR 870 – referred to.

Johnson v. Sargant & Sons 1917 1 K.B. 101; Lester v.Garland [1808] 15 Ves. 248; Re. Railways SleepersSupply Co. (1885) 29 Ch.d. 204; and In Re. North(1895) 2 Q.B. 264 – referred to.

586SUPREME COURT REPORTS

[2020] 14 S.C.R.

In the judgment of K M JOSEPH, J.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3249of 2020

From the Judgment and Order dated 26.08.2019 of the High CourtGof Punjab and Haryana at Chandigarh in CWP No. 18460/2019.

With

Civil Appeal No. 3250 of 2020, 3251 of 2020, 3252 of 2020, 3253of 2020, 3254 of 2020, 3255 of 2020, 3256 of 2020, 3257 of 2020, 3258 of2020, 3259 of 2020, 3260 of 2020, 3261 of 2020, 3262 of 2020, 3263 of

A2020, 3264 of 2020, 3265 of 2020, 3266 of 2020, 3267 of 2020, 3268 of2020, 3269 of 2020, 3270 of 2020, 3271 of 2020, 3272 of 2020, 3273 of2020, 3274 of 2020, 3275 of 2020, 3276 of 2020, 3277 of 2020, 3278 of2020 and 3279 of 2020.

K.M. Natraj, Sanjay Jain, ASGs, P.S. Narasimha, Sr. Adv, K.K.BTyagi, Sarvam Ritam Khare, Mrs. B. Sunita Rao, Merusagar samantray,B. Krishna Prasad, Ms. Anjana Gusain, Anant Agrawal, Ms. SwetaRani, Devashish Bharuka, Ravi Bharuka, Mrs. Jaya Bharuka, Ms.Sarvshree, Justin George, Ms. Sishti Agarwal, Saurabh Kapoor,Parmatma Singh, Mayank Jain, Madhur Jain, Aditi Tripathi, SarvshreeSingh, Sarvam Ritam Khare, Advs. for the appearing parties.C

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

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

AThe aftermath of Pulwama

BThe backdrop

CPetitions before the High Court

DThe judgment of the High Court

ESubmissions in the appeals

FDetermination of the rate under Section 15 of the CustomsAct 1962

GPrecedent

HInterpreting ‘day’ and ‘date’

INotification under Section 8A of the Customs Tariff Act

JGeneral Clauses Act

KInformation Technology Act, 2000

LEffect of notifications issued in e-gazettes

MRetrospectivity

NSummation

1. Leave granted.

The aftermath of Pulwama

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

On 16 February 2019, the Union Government issued notification underSection 8A of the Customs Tariff Act 1975. The notification introduceda tariff entry by which all goods originating in or exported from theIslamic Republic of Pakistan were subjected to an enhanced customsduty of 200%. The precise time at which the notification was uploadedon the e-Gazette was 20:46:58 hours. Customs authorities at the landcustoms station at Attari sought to enforce the enhanced rate of duty onimporters who had already presented bills of entry for home consumptionbefore the enhanced rate was notified in the e-Gazette. Their action ledto challenge before the High Court of Punjab and Haryana. Theconsignments of import covered diverse range of goods, ranging fromdry dates to cement.

3. On 26 August 2019, Division Bench of the High Court ofPunjab and Haryana allowed batch of writ petitions under Article 226of the Constitution. The High Court held that since the importers, whohad imported goods from Pakistan, had presented their bills of entry andcompleted the process of “self- assessment” before the notificationenhancing the rate of duty to 200 per cent was issued and uploaded, theenhanced rate of duty was not attracted. The High Court held that theimporters were liable to pay the duty applicable at the time when thebills of entry for home consumption were filed under Section 46 of theCustoms Act, 1962.[1] The Union of India was ordered to release thegoods within seven days on the payment of duty ‘as declared and assessed’without applying the notification enhancing the rate of duty on goodsoriginating in Pakistan.

4. The Union of India is in appeal.

5. The judgment of the High Court is titled as Rasrasna FoodPrivate Limited versus Union of India. Chronologically, the first petitionlisted before this Court by Special Leave under Article 136 of theConstitution is in the case of S Chatha Rice Mills. Since the issues oflaw which have been raised are common to the batch of appeals, theyhave been heard together.

The backdrop

6. The First respondent is partnership firm based in Amritsarwhich is, inter alia, engaged in the import of cement. It imported

1 “the Customs Act”

Aconsignment of fourteen hundred bags of cement from Pakistan underan invoice dated 1 February 2019. truck bearing registration numberTLV-189 (cargo) crossed the ‘zero line’ on Saturday, 16 February 2019under entry number 47195 with Pakistan Custom’s Cargo Manifestbearing the time of 4:31 pm. The goods arrived at the Land CustomsStation Road Cargo, Attari Road, Amritsar on the same day and IGMBnumber 366870 was filed in respect of the goods. The truck unloaded itscargo at the Central Warehousing Corporation, ICP, Attari. The arrivalof the goods and the filing of the IGM was before 18:00 hours on 16February 2019. The First respondent filed bill of entry number 2083178dated 16 February 2019 seeking clearance of the goods for homeCconsumption. The bill of entry was self-assessed at 18:08 hours underthe provisions of Section 17(1) of the Customs Act 1962[2] under CustomsTariff Heading 2523910 by levying nil customs duty in terms of notification68/2012 dated 31 December 2012 (as amended by notification 50/2017-serial 129 dated 30 June 2017) and IGST at 28 percent rate (in terms ofnotification 1/2017- schedule III serial No. 3). The duty payable wasDassessed at Rs 73,342/-. Notification 50/2017-Cus (serial No. 129),prescribed preferential rate of duty on specified goods originating inthe Islamic Republic of Pakistan.

On 16 February 2019, notification 5/2019 was issued by theMinistry of Finance in the Department of Revenue, in exercise of powersEconferred by sub-section (1) of Section 8A of the Customs Tariff Act1975.[3] By this notification, new tariff entry was introduced in Chapter98 of Section XXI in the following terms:

The notification contains reference to the date (16 FebruaryG2019) and time (20:46:58) at which it was uploaded and published in thee-Gazette of the Government of India. Based on the enhancement in therate of duty brought about by the notification, the customs authoritiesrefused to release the goods which were assessed earlier. The bill of

2 “the Customs Act”H3 “the Customs Tariff Act”

entry was recalled and reassessed on 20 February 2019 at 18:14 hoursby levying customs duty at 200 per cent and IGST at 28 per cent, enhancingthe duty from Rs 73,342/- to 8,10,952/-.

7. Aggrieved by the action of the customs authorities, the firstrespondent filed petition under Article 226 for setting aside (i) theassessment of the bill of entry to duty of 200%; (ii) Notification 5/2019dated 16 February 2019; and for direction to CWC to issue detentionmemo and the release of the goods.

Petitions before the High Court

8. The batch of petitions before the High Court involved cases ofother 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 fromPakistan;

(ii)the goods entered Indian territory through the Attari borderat Amritsar before 18:00 hours on 16 February 2019;

(iii)the importers had filed bills of entry under Section 46 of theCustoms Act, before the close of working hours, seekingclearance 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 theprevailing notifications and had filed the bills of entry in theEDI system;

(vi)the declarations were subject to verification by the customsdepartment which did not dispute them and generated dutypayment TR-6 challans;

(vii) since 16 February 2019 was Saturday, the customs’ officewas closed after 18:00 hours and was to open on Monday,18February 2019;

(viii) some of the importers paid the duty online through TR-6challans on 16 February 2019 while in the case of others, thepayment of duty was in progress;

(ix)Notification 5/2019 was issued at 20:46:58 hours on 16February 2019 following the Pulwama terrorist attack as

Aresult of which the rate of duty on goods originating inPakistan was enhanced to 200 per cent irrespective of thefact that some of the products had hitherto been exemptfrom customs duty; and

(x)the customs authorities refused to release the goods on theBbasis of the bills of entry which were self-assessed at thepre-existing rate and proceeded to recall them and re-assessthe goods to the enhanced rate of duty applicable undernotification 5/2019.

9. Before the High Court, the submission of the importers wasCthat before notification 5/2019 was issued (at 20:46 hours on 16 February2019 in order to discourage the import of goods from Pakistan), (i) theyhad 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) theexporters from Pakistan received payment of the consideration on theDbasis of which the goods had been supplied; and (v) the object of thenotification was to discourage imports from Pakistan and not to penalizeIndian importers who had placed orders and had imported goods intoIndia, bona fide relying on the policy which was applicable before thenotification was issued in the late hours of the day. On the issues of law,Eit was urged that after the presentation of the bills of entry for homeconsumption, self-assessment and duty payment challans had beengenerated, it was not open to the customs authorities to levy the enhancedrate of duty which came into force later, from 20:46 hours on 16 February2019. The application of notification 5/2019 would, it was urged, haveretrospective effect since the bills of entry for home consumption hadFbeen filed electronically on the customs’ automated platform before theissuance of the notification and they were self-assessed.

10. On the other hand, the contention of the Union governmentbefore 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 theGpresentation of the bill of entry. The submission was that the amendedrate of duty under notification 5/2019 came into force on 16 February2019; hence, the importers were liable to pay duty on the basis of theamended rate. The submission was that the customs authorities wereentitled to re-assess the bills of entry under Section 17(4).

The judgment of the High Court

11. The High Court, after analyzing the provisions of Sections 8Aand 11A of the Customs Tariff Act, 1975 and Sections 12, 15, 17, 46 and47 of the Customs Act,1962 held that:

(i)The relevant date for the determination of duty is the date ofBthe presentation of the bill of entry, which, in the facts of thiscase, corresponds to the date of the entry of the vehiclecarrying the goods into India;

(ii)The bills of entry were presented on 16 February 2019 beforethe issuance of notification 5/2019;

(iii)The dual requirements of Section 15 namely, the filing of thebill of entry and the entry of the vehicle were fulfilled beforethe publication of notification 5/2019;

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

(v)The absence of customs’ clearance under Section 47 had nobearing 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 ofthis Court in Union of India vs. Param Industries Limited[4];andE

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

12. The Union of India is in appeal.

Submissions in the appeals

13. Besides making oral submissions, Mr K M Natraj, AdditionalSolicitor General of India has filed written submissions. His submissionsare prefaced with delineation of the issue which is raised in the appeals,which is:

“…whether the amendment to the First Schedule of the CustomsTariff Act, 1975 takes effect from the time at which it is uploaded/ notified in the gazette or from the first moment of the day / dateon which it was issued/ published in the gazette.”

AThe submissions of the ASG are summarized below:

(i) Under Section 15 of the Customs Act, the date for thedetermination of the rate of duty and valuation of importedgoods, in the case of goods which are entered for homeconsumption under Section 46, is the date on which the billBof entry in respect of the goods is presented. The expression“on the date” comprehends the entire period of 24 hours, inthis 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 notification has beenCuploaded or published in the e-Gazette, the rate of duty leviableon imported goods cleared for home consumption is, by alegal fiction, the rate prevalent on the date of the presentationof the bill of entry;

(iii)Section 15 should be interpreted in light of the rule of literalDconstruction, and the law has to be applied as it is; and

(iv)This case is not about the prospective or retrospectiveapplication of the Notification at issue. Rather, it is the simpleintent of Parliament to consciously make the date on whichthe Notification is issued as the date for determination of theErate of duty (as applicable), which this court must uphold.

(i) Independent of (A) above, notification under Section 8A(1)of the Customs Tariff Act has the effect of amending theFirst schedule and is legislative act which dates back tothe commencement of the day;

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

(iii)Sub-section (2) of Section 8A of the Customs Tariff Actapplies the provisions of sub-sections (3) and (4) of Section7 to notification which is issued under Section 8A(1);G(iv)A notification under Section 8A(1) amending the first schedulehas to be placed before each House of Parliament and issubject to its approval and modification; and

(v)An amendment to the schedule, upon the exercise of powersunder Section 8A, constitutes an amendment of the Act itselfH

which passes through process of receiving Parliamentarysanction and is subject to its approval.

(i) In view of (B) above, since the schedule to the CustomsTariff Act is part of the enactment, the provisions of theGeneral Clauses Act 1897[5] are attracted to an amendmenteffected under section 8A(1);B

(ii)Section 3(7) of the General Clauses Act defines theexpression ‘Central Act’ to mean an Act of Parliament whileSection 3(13) defines ‘commencement’ to mean the day onwhich an Act or Regulation comes into force;

(iii)Under Section 5(3) of the General Clauses Act, CentralAct or Regulation, unless the contrary is expressed, comesinto force immediately on the expiration of the day precedingits commencement; and

(iv)‘Commencement’ can only be from day which takes withinits fold the entire period of 24 hours from midnight of the dayDbefore the issuance of the notification.

DThe twin requirements of Section 15 are fulfilled because(i)The notification was issued and uploaded in the Gazette on16 February 2019; and

(ii)The bills of entry for home consumption under Section 46were presented on 16 February 2019.

This is the substratum of the plea that the rate of duty prescribedby notification 5/2019 is applicable.

14. Opposing the above submissions, Mr PS Narasimha, learnedSenior Counsel submitted that

(i) The levy of customs duty under Section 12 of the CustomsAct is at the rates prescribed under the Customs Tariff Act;

(ii)Under Section 15 of the Customs Act, the rate of duty is therate prevalent on the date of the presentation of the bill ofentry under section 46 of the Customs Act, where goods areGcleared for home consumption; and

(iii)The importers fulfilled the twin requirements of the goodshaving entered on 16 February 2019 and the bill of entry

5 “the General Clauses Act”

Ahaving been filed before 20:46 hours when notification 5/2019 was issued. The bills of entry had to be assessed tocustoms duty at the rate which was in existence prior to thepublication of the notification.

(i) Notification 5/2019 having been published at 20:46:58 hoursBon 16 February 2019 it was never updated on the EDI portal;(ii)Notification 5/2019 would apply only to bills of entry for homeconsumption presented after 20:46:58 hours on 16 February2019 or upon amendment in the online EDI portal ofICEGATE;C(iii)A notification issued under the provisions of Section 8A (1)of the Customs Tariff Act cannot have retrospectivecharacter; and

(iv)Subordinate legislation is not retrospective unless the statuteunder which it has been framed, expressly or by necessaryDimplication, imports retrospectivity. Subordinate legislationcannot always be equated as an ‘Act of legislature’ for theinterpretation of ‘Central Act’ as defined by the GeneralClauses Act.

(i) Digital India is new vision and idea into which India isEevolving, and we are in phase of governance in whichmultiple commercial transactions take place every single day.Rule 5(1) of the Information Technology (Electronic ServiceDelivery) Rules, 2011 mandates maintenance of timestampsfor any governmental electronic records;

F(ii)In exercise of the powers conferred by Section 157 readwith Sections 46 and 47 of the Customs Act, the CentralBoard of Indirect Taxes and Customs has passed the Bill ofEntry (Electronic Integrated Declaration and PaperlessProcessing) Regulations 2018[6];

G(iii)Under Regulation 4(2), the bill of entry is deemed to havebeen filed and self-assessment completed when, after theentry of the electronic integrated declaration on the customsautomated system, bill of entry is generated by the IndianCustoms Electronic Data Interchange System and the self-

H6 “the Regulations 2018”

assessed copy of the bill of entry may be electronicallytransmitted to the authorized person;

(iv)In terms of the provisions of Section 15(1)(a), where goodsare entered for home consumption under Section 46, the rateof duty is the rate in force on the date on which bill of entryin respect of such goods is presented under Section 46. TheBRegulations of 2018 have been made pursuant to Section 46and contain deeming fiction which prescribes when thepresentation of the bill of entry and self-assessment iscomplete;

(v)Once the bills of entry were filed and self-assessment wascomplete, the subsequent issuance of notification 5/2019 at20:46:58 hours would have no application to the present batchof cases; and

(vi)Bills of entry, once presented, can be re-assessed underSection 17(4) only in instances when the assessment has“not been done correctly” upon verification, examination ortesting of the goods by the proper officer. None of thesecircumstances are applicable to the present case.

The purpose of the notification being to discourage the importof goods from Pakistan, it has prospective effect: the object and purposeis 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 theRegulations, prior to the issuance of the notification.

The submissions which were urged by Mr P S Narasimha havebeen supported by other learned counsel appearing for the respondentsincluding 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.

Determination of the rate under Section 15 of theCustoms Act 1962

16. Chapter V of the Customs Act provides for the levy of andexemption from customs duties. Section 12(1), which is the chargingprovision, provides for the levy of duties of customs on goods imported

Ainto, or exported from India at the rates specified by the Customs TariffAct or, in any other law for the time being in force. Section 15(1) isextracted below:

“15. Date for determination of rate of duty and tariff valuation ofimported goods.— (1) The rate of duty and tariff valuation, ifBany, applicable to any imported goods, shall be the rate andvaluation in force,—

(a) in the case of goods entered for home consumption undersection 46, on the date on which bill of entry in respect ofsuch goods is presented under that section;

C(b) in the case of goods cleared from warehouse under section68, on the date on which bill of entry for home consumption inrespect of such goods is presented under that section];

(c) in the case of any other goods, on the date of payment of duty:

DProvided that if bill of entry has been presented before the dateof entry inwards of the vessel or the arrival of the aircraft or thevehicle by which the goods are imported, the bill of entry shall bedeemed to have been presented on the date of such entry inwardsor the arrival, as the case may be.

The provisions of this section shall not apply to baggage and goodsEimported by post.”

(emphasis supplied)

17. Section 12 specifies that the rates of duty on goods importedand exported are those which are provided in the Customs Tariff Act orFin any other law. Section 12 does not indicate when the duties underthose enactments will come into being or force. Section 15 specifies thedate with reference to which the rate of duty and tariff valuation ofimported goods is determined. Clauses (a), (b) and (c) of sub-section (1)of section 15 contain distinct provisions which apply to:

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

(ii)goods cleared from warehouse under Section 68; and(iii)other goods.

Where goods are entered for home consumption under Section46, the rate of duty and tariff valuation is to be the rate and valuation “inH

force” “on the date on which” bill of entry in respect of such goodsis presented under that Section. In relation to the rate of duty, the effectof clause (a) of Section 15(1), is that the rate which is in force on thedate on which bill of entry is presented under Section 46 (in the case ofgoods entered for home consumption) is applicable to the imported goods.When the duties come into force under the enactments imposing them isdependent on and defined by the terms of the particular enactment.

18. Chapter IX of the Customs Act contains provisions forwarehousing. Section 68 which falls under that Chapter stipulates thatgoods which have been warehoused may be cleared for homeconsumption if:

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

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

c)An order for clearance for home consumption has been madeby the proper officer.

Provided that the order referred to in clause (c) may also be madeelectronically through the customs automated system on the basis ofrisk evaluation through appropriate selection criteria.

For goods which are cleared from warehouse under Section 68,clause (b) of Section 15 (1) provides that the rate of duty and valuationare those “in force” “on the date” on which bill of entry for homeconsumption 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 dutyunder clause (c) of Section 15(1).

The proviso to Section 15 (1) contemplates situation where abill of entry has been presented before the date of the entry inwards ofthe vessel or the arrival of the aircraft or vehicle through which thegoods are imported. Under the proviso to Section 46(3), bill of entrymay be presented at any time not exceeding thirty days prior to theexpected arrival of the aircraft or vehicle by which the goods have beenshipped for importation into India. Dealing with such situation, theproviso to Section 15(1) states that if bill of entry has been presentedprior to the date of the entry inwards of the vessel or the arrival of theaircraft or vehicle by which the goods are imported, the bill of entry isdeemed to have been presented on the date of the entry inwards or the

Aarrival of the goods. Hence even where the bill of entry has beenpresented before the date of the entry inwards or the arrival of theaircraft or vehicle, the rate of duty is determined with reference to thedate of entry inwards or the arrival of the aircraft or vehicle. This is aconsequence of the deeming fiction under the proviso, as result ofwhich the presentation of the bill of entry, when filed prior to the arrivalBof the goods, is deemed to be on the date of the entry inwards or thearrival of the aircraft or vehicle. Hence, implicit in the provisions ofSection 15(1) are the dual or (as counsel before the court describedthem) 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 arrivalCof the aircraft or vehicle.

19. Section 17 provides for the assessment of duty. Section 46provides for the entry of goods on importation. Both the provisions ofSection 17 and Section 46 have undergone legislative changes by Act 8of 2011 and by the Finance Act of 2018. By Act 8 of 2011, Section 17Dwas substituted and Section 46 was amended to provide for thepresentation in the electronic form of bill of entry for home consumptionor warehousing. Section 46 provides as follows:

“46. Entry of goods on importation.—(1) The importer ofany goods, other than goods intended for transit orEtranshipment, shall make entry thereof by presenting[electronically] [on the customs automated system] to theproper officer bill of entry for home consumption orwarehousing in such form and manner as may be prescribed:Provided that the [Principal Commissioner of Customs orCommissioner of Customs] may, in cases where it is notFfeasible to make entry by presenting electronically on thecustoms automated system, allow an entry to be presentedin any other manner: Provided further that if the importer makesand subscribes to declaration before the proper officer, to theeffect that he is unable for want of full information to furnish allGthe particulars of the goods required under this sub-section, theproper officer may, pending the production of such information,permit him, previous to the entry thereof (a) to examine the goodsin the presence of an officer of customs, or (b) to deposit thegoods in public warehouse appointed under section 57 withoutwarehousing the same.

(2) Save as otherwise permitted by the proper officer, bill ofentry shall include all the goods mentioned in the bill of lading orother receipt given by the carrier to the consignor.

(3) The importer shall present the bill of entry under sub- section(1) before the end of the next day following the day (excludingholidays) on which the aircraft or vessel or vehicle carrying thegoods arrives at customs station at which such goods are to becleared for home consumption or warehousing: Provided that abill of entry may be presented at any time not exceeding thirtydays prior to the expected arrival of the aircraft or vessel or vehicleby which the goods have been shipped for importation into India:Provided further that where the bill of entry is not presented withinthe time so specified and the proper officer is satisfied that therewas no sufficient cause for such delay, the importer shall paysuch charges for late presentation of the bill of entry as may beprescribed.

(4) The importer while presenting bill of entry shall make andsubscribe to declaration as to the truth of the contents of suchbill of entry and shall, in support of such declaration, produce tothe proper officer the invoice, if any, [and such other documentsrelating to the imported goods as may be prescribed].

(4A) The importer who presents bill of entry shall ensure thefollowing, 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 tothe goods under this Act or under any other law for the time beingin force…….”

(emphasis supplied)

Sub-section (1) of Section 46 requires an importer of goods tomake an entry by presenting bill of entry for home consumption orwarehousing “electronically on the customs automated system” tothe proper officer “in such form and manner as may be prescribed”.The word ‘electronically’ was introduced by Act 8 of 2011 with effectfrom 8 April 2011. The provision for the presentation of the bill of entry

Aon the customs automated system and in ‘such form and manner asprescribed’ was introduced by the Finance Act of 2018. Under sub-section (3) of Section 46, bill of entry under sub-section (1) must bepresented before the end of the day following the day on which theaircraft, vessel or vehicle carrying the goods arrives at customs stationat which the goods are to be cleared for home consumption orBwarehousing (holidays being excluded). The first proviso to sub- section(3) enables the presentation of bill of entry before arrival, at time notexceeding thirty days prior to the expected arrival of the aircraft, vesselor vehicle by which the goods have been shipped for importation. Underthe second proviso if the bill of entry is not presented within the specifiedCtime without sufficient cause, the importer is required to pay the chargesprescribed 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 importedgoods under section 46, or an exporter entering any export goodsunder 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 sectionE46 or section 50 and the self-assessment of goods referred to insub-section (1)] and for this purpose, examine or test any importedgoods or export goods or such part thereof as may be necessary.

Provided that the selection of cases for verification shall primarilybe on the basis of risk evaluation through appropriate selectioncriteria.F

(3) For the purposes of verification under sub-section (2), theproper officer may require the importer, exporter or any otherperson to produce any document or information, whereby the dutyleviable on the imported goods or export goods, as the case maybe, can be ascertained and thereupon, the importer, exporter orGsuch other person shall produce such document or furnish suchinformation.

(4) Where it is found on verification, examination or testingof the goods or otherwise that the self-assessment is notdone correctly, the proper officer may, without prejudice toH

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) iscontrary to the self-assessment done by the importer or exporterand in cases other than those where the importer or exporter, asthe case may be, confirms his acceptance of the said re-assessment in writing, the proper officer shall pass speakingorder on the re-assessment, within fifteen days from the date ofre-assessment of the bill of entry or the shipping bill, as the casemay be.

Explanation.-For the removal of doubts, it is hereby declared thatin cases where an importer has entered any imported goods undersection 46 or an exporter has entered any export goods undersection 50 before the date on which the Finance Bill, 2011 receivesthe assent of the President, such imported goods or export goodsshall continue to be governed by the provisions of section 17 as itstood immediately before the date on which such assent isreceived.”

(emphasis supplied)

Prior to its substitution by Amending Act 8 of 2011, Section 17contained requirements for (i) examination and testing of goods; and (ii)assessment. Section 17, as it stood prior to substitution, was in thefollowing terms:

“17. Assessment of Duty. –

(1) After an importer has entered any imported goods under section46 or an exporter has entered any export goods under, section 50the imported goods or the export goods, as the case may be, orsuch 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 onsuch goods shall, save as otherwise provided in section 85, beassessed.

(3) For the purpose of assessing duty under sub-section (2), theproper officer may require the importer, exporter or any otherperson to produce any contract, broker’s note, policy of insurance,catalogue or other document whereby the duty leviable on the

Aimported goods or export goods, as the case may be, can beascertained, and to furnish any information required for suchascertainment which it is in his power to produce or furnish, andthereupon the importer, exporter or such other person shall producesuch document and furnish such information.

B(4) Notwithstanding anything contained in this section, importedgoods or export goods may, prior to the examination or testingthereof, be permitted by the proper officer to be assessed to dutyon the basis of the statements made in the enter relating theretoand the documents produced and the information furnished undersub-section (3); but if it is found subsequently on examination orCtesting of the goods or otherwise that any statement in such entryor document or any information so furnished is not true in respectof any matter relevant to the assessment, the goods may, withoutprejudice to any other action which may be taken under this Act,be re-assessed to duty.D

(5) Where any assessment done under sub-section (2) is contraryto the claim of the importer or exporter regarding valuation ofgoods, classification, exemption or concessions of duty availedconsequent to any notification therefore under this Act, and incases other than those where the importer or exporter, as theEcase may be, confirms his acceptance of the said assessment inwriting, the proper officer shall pass speaking order within fifteendays from the date of assessment of the bill of entry or the shippingbill, as the case may be.”The amendment of 2011 has made significant legislative changesFin the procedure and modalities for assessment of duty under Section17. Under sub- section 1 of Section 17, the importer entering importedgoods under Section 46, has to ‘self-assess’ duty (except as otherwiseenvisaged in the provisions of Section 85). Under sub-section (2), theproper officer may verify the entries made under Section 46 and theself-assessment made under sub-section (1) and may examine or testGthe goods. The selection of goods for verification has to be primarily onthe basis of risk evaluation through appropriate selection criteria. Undersub-section (4), where it is found on verification, examination or testingof goods or otherwise that the self-assessment has not been done properlythe proper officer is entrusted with power of re-assessment. Sub-Hsection (5) requires the passing of speaking order upon re-assessment.

21. Section 47 provides for the clearance of goods for homeconsumption:

“Clearance of goods for home consumption.

(1) Where the proper officer is satisfied that any goodsentered for home consumption are not prohibited goodsand the importer has paid the import duty, if any, assessedthereon and any charges payable under this Act in respect of thesame, the proper officer may make an order permittingclearance of the goods for home consumption:

Provided that such order may also be made electronicallythrough the customs automated system on the basis or riskevaluation through appropriate selection criteria:

Provided further that the Central Government may, by notificationin the Official Gazette, permit certain class of importers to makedeferred payment of said duty or any charges in such manner asmay be provided by rules.

(2) The importer shall pay the import duty—

(a) on the date of presentation of the bill of entry in thecase of self assessment; or

(b) within one day (excluding holidays) from the date on whichthe bill of entry is returned to him by the proper officer for paymentof duty in the case of assessment, reassessment or provisionalassessment; or

(c) in the case of deferred payment under the proviso to sub-section (1), from such due date as may be specified by rules madein this behalf,

and if he fails to pay the duty within the time so specified, he shallpay interest on the duty not paid or short-paid till the date of itspayment, at such rate, not less than ten per cent. but not exceedingthirty-six per cent. per annum, as may be fixed by the CentralGovernment, by notification in the Official Gazette……”

(emphasis supplied)

Sub-section (2) of Section 47 requires the importer to pay importduty “on the date of presentation of the bill of entry in the case of self-

Aassessment”. Alternatively, where the bill of entry is returned to theimporter for the payment of duty in the case of assessment, re-assessment or provisional assessment, the import duty has to be paidwithin day, after excluding holidays.

The provisions contained in Section 46 for the entry of goods onBimportation and those in Section 17 for assessment form part of acomposite scheme. Section 46 requires an importer of goods to make anentry in the electronic form of bill of entry for home consumption or, asthe case may be, for warehousing, on the customs automated system.An exception is contained in the proviso to Section 46 (1) for caseswhere it is not feasible to make an entry in the electronic form on theCcustoms automated system. The bill of entry under sub-section (1) hasto be presented not later than the day following the arrival of the goodsthough it can be presented before the arrival of goods, at time notexceeding thirty days prior to their expected arrival. In tandem with theprovisions of Section 46, Section 17 provides for the self-assessment ofDduty by the importer.Section 46(1) stipulates that the bill of entry has to be presented inthe form and in the manner ‘prescribed’. The expression ‘prescribed’ isdefined in Section 2(32) to mean prescribed by regulations made underthe Act. The Bill of Entry (Electronic Integrated Declaration andEPaperless Processing) Regulations 2018 have been made in pursuanceof the enabling power conferred by Sections 46 and 47 and Section 157which contains general power to make regulations. Section 157(2)(a)was amended by the Finance Act 2018 (Act 13 of 2018) to allow for thepower to frame regulations on the form and manner of delivering orpresenting inter alia bill of entry. Regulation 2(c) of the 2018FRegulations defines the expression bill of entry in the following terms:

“(c) “bill of entry” means electronic integrated declaration acceptedand unique number generated and assigned to that particular billof entry by the Indian Customs Electronic Data InterchangeSystem, and includes its electronic records or print-outs”

GRegulation 2(d) defines the expression electronic integrateddeclaration:

“(d) “electronic integrated declaration” means particulars relatingto the imported goods that are entered in the Indian CustomsElectronic Data Interchange System”H

Under Regulation 2(e), “ICEGATE” is the customs automatedsystem of the Central Board of Indirect Taxes and Customs. Regulation3 requires the authorized person (defined in Regulation 2(b)[7]), whichincludes the importer, to enter the electronic integrated declaration andsupporting documents by affixing digital signature. Regulation 3 is asfollows:

“3. The authorised person shall enter the electronic integrateddeclaration and the supporting documents himself by affixing hisdigital signature and enter them on the Customs AutomatedSystem and he may also get the electronic integrated declarationmade on the customs automated system along with the supportingdocuments by availing the services at the service centre.”

Regulation 4 provides as follows

“4. (1) The authorised person shall file the bill of entry before theend of the next day following the day (excluding holidays) onwhich the aircraft or vessel or vehicle carrying the goods arrivesat customs station at which such goods are to be cleared forhome consumption or warehousing.

(2) The bill of entry shall be deemed to have been filed andself-assessment completed when after entry of theelectronic integrated declaration on the customs automatedsystem or by way of data entry through the service centre,a bill of entry number is generated by the Indian CustomsElectronic Data Interchange System for the said declarationand the self-assessed copy of the Bill of Entry may beelectronically transmitted to the authorised person orprinted out at the service centre.

(3) Where the bill of entry is not filed within the time specified insub-regulation (1) and the proper officer of Customs is satisfiedthat there was no sufficient cause for such delay, the importershall be liable to pay charges for late presentation of the bill ofentry at the rate of ……”

(emphasis supplied)

7 2(b) “authorised person” means an importer or person authorised by him who hasa valid licence under the Customs Brokers Licensing Regulations, 2013 or any otherregulation dealing with the similar matters and it also includes an employee of theCustoms broker who has been issued photo identity card in Form under theCustoms Brokers Licensing Regulations, 2013 or any other regulation dealing with thesimilar matters;

A22. The Regulations of 2018 have made provisions for submissionof declaration and generation of the bill of entry in an electronic formon the automated platform provided by the Central Board of IndirectTaxes and Customs. Sub-regulation (2) of Regulation 4 embodies legalfiction. Regulation 4(2) stipulates that the bill of entry is deemed to havebeen filed and self- assessment completed when after the entry of theBelectronic integrated declaration on the customs automated system (orby data entry through service centre) bill of entry number is generatedby the Indian Customs Electronic Data Interchange (“EDI”) System.The self-assessed copy of the bill of entry may be electronicallytransmitted to the authorized person under the deeming fiction which isCcreated by Regulation 4(2). Hence, the bill of entry is deemed to be filedand the self-assessment completed when the requirements of Regulation4(2) are fulfilled namely by the (i) entry of the declaration on the customsautomated system; and (ii) generation of bill of entry number by theEDI system. Following this, the self-assessed copy of the bill of entry iselectronically transmitted to the authorized person.D

23. In terms of the provisions of Section 15(1)(a), in the case ofgoods which are entered for home consumption under Section 46, thedate of presentation of the bill of entry determines the rate of duty andtariff valuation. Under Section 47(2)(a), the importer is obliged to paythe import duty on the date of the presentation of the bill of entry in theEcase of self-assessment. Regulation 4(2) of the Regulations of 2018categorically stipulates when the presentation of the bill of entry iscomplete. Once the bill of entry is deemed to have been presented interms of Regulation 4(2) the rate and valuation in force stand crystalizedunder Section 15(1)(a). Section 17(4) confers power of re-assessmentFon the proper officer where it is found on verification, examination ortesting of the goods or otherwise- that the self-assessment has not beendone correctly. In the present case the customs authorities sought toexercise the power of re-assessment on the ground of the subsequentnotification 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 whichGprevailed at the time of the presentation of the bill of entry. This is notand cannot be matter of dispute. Notification 5/2019, which introduceda new tariff entry – 980 60 000 - in the First schedule to the CustomsTariff Act covering all goods originating in or exported from the IslamicRepublic of Pakistan, was not in force at the time when the self-Hassessment was carried out.

24. Under Section 15(1)(a) the rate of duty is the rate in force onthe date of the presentation of bill of entry where the goods are enteredfor home consumption under Section 46. The submission of the learnedASG is that the expression “on the date” is adopted by the legislature inclauses (a) and (b) and in the proviso to Section 15(1). He urged thatSection 15(1) has no reference to time but only to the date of thepresentation of the bill of entry and once notification was issued on 16February 2019 enhancing the rate of duty, that is the duty ‘in force’ onthe date of presentation. Section 15(1)(a) uses two expressions (i) therate and valuation “in force”; and (ii) “on the date” of the presentationof the bill of entry for home consumption under Section 46. The provisionsof Section 15(1)(a) have to be read in conjunction with the provisions ofSection 46 which are referred to in the former provision. Section 46 hasincorporated regime which encompasses the submission of the bill ofentry for home consumption or warehousing in an electronic format, onthe customs automated system in the manner which is prescribed. TheRegulations of 2018 stipulate the manner in which the bill of entry has tobe presented. The deeming fiction in Regulation 4(2) specifies whenpresentation of the bill of entry and ‘self- assessment’ are complete.The rate of duty stands crystallized under Section 15(1)(a) once thedeeming fiction under Regulation 4(2) comes into existence. Theregulations have to be read together with the statutory provisionscontained in Section 15(1)(a) and Section 46, while determining the rateof duty.

Precedent

25. At this stage it is necessary to analyze the precedent on thesubject. In Bharat Surfactants (Private) Limited vs. Union of India[8](“Bharat Surfactants”), customs duty was imposed on the import ofedible oil by the petitioners at the rate of 150 per cent on the basis thatthe import was made on the date of the inward entry, which was 31 July1981. The vessel arrived and registered in the Port of Bombay on 11July 1981 but since berth was not available, the cargo could not beunloaded. The vessel left Bombay and proceeded to Karachi and returnedtowards the end of July 1981. The rate of customs duty prevailing on 11July 1981 was 12.5 per cent and the contention of the importer was thatbut for the fact that the vessel was unable to secure berth, it wouldhave delivered the cargo. Speaking for Constitution Bench, Chief Justice

ABC

AR S Pathak rejected the contention of the importer that the import ofgoods must be deemed to have taken place on 11 July 1981 when theship originally arrived in Bombay port and registered itself. The ConstitutionBench held:

“14…The provisions of Section 15 are clear in themselves. TheBdate on which Bill of Entry is presented under Section 46 is, inthe case of goods entered for home consumption, the date relevantfor determining the rate of duty and tariff valuation. Where theBill of Entry is presented before the date of Entry Inwards of thevessel, the Bill of Entry is deemed to have been presented on thedate of such Entry Inwards.”CThe Constitution Bench held that the date of entry inwards of thevessel in the Customs’ register was mentioned as 31 July 1981 and therate of import duty and tariff valuation would be that which was in forceon that day. The decision in Bharat Surfactants was adverted to in thedecision of this court in Priyanka Overseas Pvt. Ltd. vs. Union ofDIndia[9]. Justice N M Kasliwal, speaking for the two judge Bench,observed:“34…The rate of duty and tariff valuation on the imported goodsmay be changed from time to time and as such the legislature hasclearly expressed its intention under Section 15 as to on whatdate the rate of duty and tariff valuation is to be determined…EMany contingencies may happen in between the filing of bill ofentry and actual removal of the goods from the warehouse forwhich sometimes the importer of goods may himself be responsible,in some cases the responsibility may lie on the customs authoritiesand there may also be contingencies beyond the control of bothFthe 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 ofactual removal of goods from the warehouse under Section15(1)(b) of the Customs Act.”

The above observations, referring to the date of the actual removalGof goods from the warehouse, were made in the context of the provisionsof Section 15(1)(b). In subsequent decision in Dhiraj Lal Vohra vs.Union of India[10], Justice K Ramaswamy speaking for three judgeBench observed:

9 1991 Supp (1) SCC 102H10 1993 Supp (3) SCC 453

“3. It is clear from bare reading of these relevant provisions thatthe due date to calculate the rate of duty applicable to any importedgoods shall be the rate and valuation in force, in the case of thegoods entered for home consumption under Section 46, is the dateon which the bill of entry in respect of such goods is presentedunder that section and in the case of goods cleared from awarehouse under Section 68, the date on which the goods areactually removed from the warehouse. By operation of the provisoif bill of entry has been presented before the date of entryinwards the bill of entry shall be deemed to have been presented“on the date of such entry inwards” but would be subject to theoperation of Sections 46 and 31(1) of the Act.”

In that case the ship had arrived at the Port of Madras on 20February 1989 and was ready to discharge her cargo. Though the importmanifest was delivered, the cargo could not be handled as result of acontinuous strike. The bill of entry for clearance of goods for homeconsumption was presented on 27 February 1989. The ship arrived intothe port and was berthed on 2 March 1989 on which date the entryinwards was granted. From 1 March 1989, the rate of duty was increased.The court rejected the contention that since the vessel had entered Indianterritorial waters on 20 February 1989 when she was ready to dischargethe cargo, the rate of duty must be that which prevailed on that date:

“3…The contention, therefore that the ship entered Indian territorialwaters on February 20, 1989 and was ready to discharge thecargo is not relevant for the purpose of Section 15(1) read withSections 46 and 31 of the Act. The prior entries regardingpresentation of the bill of entry for clearance of the goods onFebruary 27, 1989 and their receipt in the appraising section onFebruary 28, 1989 also are irrelevant. The relevant date to fix therate of customs duty, therefore, is March 2, 1989. The rate whichprevailed as on that date would be the duty to which the goodsimported are liable to the impost and the goods would be clearedon its payment in accordance with the rate of levy of customsprevailing as on March 2, 1989.”

Another decision of Bench comprising three learned judges ofthis Court in D.C.M. vs. Union of India[11]held as follows:

A“7…A reading of Sections 15, 46 and 68 makes it clear that theyprovide an option to the importer either to file bill of entry forhome consumption straight away (in which case he has to pay theduty determined with reference to that date) or to file bill ofentry for warehousing. In the latter case, the goods are merelywarehoused. The import duty will be levied at the rate and on theBbasis of the valuation determined in accordance with the provisionsprevailing on the date of clearance from the warehouse for whichpurpose the importer has to file fresh bill of entry for homeconsumption. In other words, it is the date of filing the bill ofentry for home consumption which determines the rate of dutyCin clauses (a) and (b) of Section 15. Inasmuch as the matter isleft to the option of the importer and also because uniform principleis adopted by the Act, as explained above, we see no room forany legitimate grievance of discrimination. There is also nopresumption that rate of duty always goes up. It may also godown, in which case, the importer stands to gain.”D

26. The presentation of bill of entry for home consumption underSection 46 is hence the definitive event with reference to which thecustoms’ duty payable for import is determined. The duty in force on theday when the bill of entry for home consumption is presented is the dutywhich is applicable under Section 15(1)(a). It is in view of this principleEthat the entry of the vessel into territorial waters, before the presentationof the bill of entry, has been held not to fix the rate of duty where therate of duty has undergone change.

Interpreting ‘day’ and ‘date’

F27. The expressions “day” and “date” have been construed invarying contexts in the precedents of this Court. The underlying featureof the decisions is that the content of those expressions is based on thecontext. In Raj Kumar Yadav vs. Samir Kumar Mahaseth[12], thelimitation provided by Section 81 of the Representation of the PeopleAct 1951 expired on the 45[th] day from the date of the election. InterpretingGthe provision, Chief Justice R.C. Lahoti while speaking for three judgeBench of this Court observed :

“6…The word “day” is not defined in the Act. It shall have to beassigned its ordinary meaning as understood in law. The word

“day” as per English calendar begins at midnight and covers aperiod of 24 hours thereafter, in the absence of there being anythingto the contrary in the context.”

Hence, in that case the Election Petition could have been presentedup to midnight falling between 27 and 28 August 2003. The Courtobserved that the limitation which was prescribed by the statute couldnot be curtailed or taken away by the rules of the High Court, governingits procedure.

28. In New India Assurance Co. Ltd. vs. Ram Dayal[13] (“RamDayal”), two judge Bench of this Court noted that the insurance policyin respect of the vehicle was up to 31 August 1984 and could be renewed.Instead of renewing the policy, fresh insurance policy was taken from28 September 1984, on which date the accident occurred. This Courtupheld the view of the Punjab and Haryana High Court, which wassupported by earlier decisions of the Madras High Court, Punjab andHaryana High Court and the Allahabad High Court, that the insurancecover commenced from the beginning of the day and concluded that:

“4… when policy is taken on particular date, its effectivenessis from the commencement of the date and, therefore, the HighCourt, in our opinion, was right in holding that the insurer wasliable in terms of the Act to meet the liability of the owner underthe award.”

29. On the other hand, in National Insurance Company Limitedvs. Geeta Devi[14], the cover note was issued on 9 June 1989 at 4:40 pmwhile the accident took place at 11:30 am on the same day. two judgeBench of this Court distinguished the decision in Ram Dayal (supra)and held that when the cover note mentioned the date of issue of thepolicy as 9 June 1989 and the time as 4:40 pm “ it necessarily means thatthe effective date of issue and time of issue is as mentioned on the covernote.” Since the cover note mentioned both the date and time, the Courtheld that the principle that the insurance cover would date back to midnightof the preceding day would not cover the factual situation.

30. In Ahmadsahab Abdul Mulla (2) Dead by proposed Lrs.vs. Bibijan[15], the issue before this Court was whether the expression“date” in Article 54 of the Schedule to the Limitation Act (which prescribes

13 (1990) 2 SCC 680

14 (2010) 15 SCC 670

15 (2009) 5 SCC 462

Athe period of limitation for suit for specific performance) is suggestiveof specific date in the calendar. The court observed:

“11. The inevitable conclusion is that the expression “date fixedfor the performance” is crystallised notion. This is clear fromthe fact that the second part “time from which period begins toBrun” refers to case where no such date is fixed. To put itdifferently, when date is fixed it means that there is definite datefixed for doing particular act. Even in the second part the stressis on “when the plaintiff has notice that performance is refused”.Here again, there is definite point of time, when the plaintiffnotices the refusal. In that sense both the parts refer to definiteCdates. So, there is no question of finding out an intention fromother circumstances.”

31. The expression ‘date’ in Article 54 was held to be suggestiveof specified date in the calendar. In Pashupati Nath Singh vs. HariharPrasad Singh[16], three judge Bench construed the words “on the dateDfixed for scrutiny” in Section 36(2)(a) of the Representation of the PeopleAct 1951. Interpreting those words, the Court held that the qualificationof candidate must exist from the earliest moment of the day of scrutiny:

“13. It seems to us that the expression “on the date fixed forscrutiny” in Section 36(2)(a) means “on the whole of the day onEwhich the scrutiny of nomination has to take place”. In other words,the qualification must exist from the earliest moment of the day ofscrutiny. It will be noticed that on this date the Returning Officerhas to decide the objections and the objections have to be madeby the other candidates after examining the nomination papersFand 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 aposition to raise all possible objections before the scrutiny of aparticular nomination paper starts.”

32. Special Bench of the Madras High Court in Re CourtGFees[17]dealt with the interesting issue of whether the law disregardsfractions of the day. notification was published in the Fort St. GeorgeGazette on 5 May 1922 by which the table of fees leviable in respect ofthe institution of suits under Appendix – II of the old rules on the Originalside was amended. Instead of fixed fee of Rs 30, it was provided that

16 (1968) 2 SCR 812H17 ILR (1923) 46 Mad 685

Rs 150 was to be levied in all suits where the value of the subject matterdid not exceed Rs 10,000/- and in respect of suits of higher value, Rs20/- was to be levied for every Rs 5,000/- or part thereof in excess of Rs10,000/-. The notification stated that “the amendments do come intoforce from the date of publication in the Fort St. George Gazette”.The office hours of the High Court were from 11am to 5pm. Thenotification reached the High Court at about 5pm, at the close of theoffice hours. The issue before the Special Bench was whether the rulesimposing increased institution fees on suits on the Original side of theHigh Court would apply the new scale to suits which had already beeninstituted on that day. Chief Justice Schwabe, on behalf of the majority,held “that the hour of the day at which the Gazette was actually publishedis wholly irrelevant consideration”. The Chief Justice noted that theuse of the expression ‘from’ may have one of two meanings namely onand after, that is including the named date, or merely after, that is excludingthe named date. The Chief Justice took the view that it is necessary tolook at the context and the circumstances of each case to arrive at thetrue construction. Having said this, the Chief Justice outlined the principlesin the following extract on page 688:

“(1) that, if the named date is the beginning of defined limitedperiod, that, where there is terminus ad quem as well as aterminus quo, then prima facie the first day is excluded; (2)that, if the named date is the beginning of an indefinite period thenprima facie the first day is included. I say prima facie becausein my view there must be exceptions”.

In his view, the expression “from named date” meant “on andafter that day”. Hence the date on which the notification was publishedin the official Gazette was held to apply to all plaints which were filed on5 May 1922.

Justice Coutts Trotter, arrived at the same conclusion as the ChiefJustice, following different path, which he set out in the followingobservations, on page 691 :

“What I conceive to emerge from the decided cases is this: thatas the law in general neglects fractions of day you must eitherexclude or include the whole of the day with which given statuteor rule or regulation deals. And the exclusion or inclusion, I think,is clearly provided in two other rules. If you are fixing the point oftime at which certain state of things is to be called into existence,

Athat state of things comes into existence at midnight of the daypreceding the day at which or on which or from which or fromand after which the new state of things begins. In such cases thestatue or rule is only concerned in fixing the terminus quo of anew state of law which is enacted to continue indefinitely, in otherwords, until repealed by new enactment of the legislature where,Bin short, you have terminus quo but no terminus ad quem.”

In his view, on page 693:

“Where statute fixes only the terminus quo of state of things,which is envisaged as to last indefinitely, the common law ruleCobtains that you ought to neglect fractions of day and the statuteor regulation or order takes effect from the first moment of theday on which it is enacted or passed, that is to say, from midnightof the day preceding the day on which it is promulgated: where onthe other hand, statute delimits period marked both by terminusa quo and terminus ad quem, the former is to be excluded andDthe latter to be included in the reckoning.”The notification, in this view, fell in the former class and was heldto have come into force on the first second of the 5 May, that is to sayfrom midnight of 4 May. Hence all plaints which were filed on 5 Maywere liable to the enhanced fee.

The tightly reasoned and eloquent dissenting opinion delivered byJustice Kumaraswami Sastri, on the other hand, deserves close attention.The learned Judge noted that if the case were to be decided on theprinciple that the law disregards fractions of day, it could mean anyone of two things: either that fraction of day is to be taken as wholeFday or that it is to be excluded altogether from the calculation.Consequently, “it does not help us to determine in any particular casewhether the part is to be left out or kept in”. Justice KumaraswamiSastri observed that there is no invariable rule that the use of theexpression ‘from’ includes the first day. Nor was there any basis inGprinciple in the submission of the Crown that the exclusion of the firstday where the word “from” is used is only to be in case where there aretwo termini. The learned Judge held that rules of equity and goodconscience are by the Civil Courts Act to govern cases not governed bythe Hindu and Mohammedan Laws. Voicing powerful dissent, JusticeKumaraswami Sastri observed, on page 704:

“I do not think that the principles which govern, or the deviceswhich are resorted to, by the Executive for the purpose of raisingmoney by taxation ought to have any weight with us in determiningwhether the date of publication is to be included or excluded. I donot think the High Court is part of the tax gathering machinery ofthe Government or has any concern with the consequences to theGovernment of their decision on the construction of the rule. Therule, I take it, was passed by the Judges of the High Court in theexercise of the powers entrusted to them to control theadministration of justice and the fees were raised because in theopinion of the Judges it was just and proper that litigants ought topay more for the benefits which they derive by resorting to thejurisdiction of the High Court”.

In the view of the learned Judge, the notification having beenreceived in the Registry of the High Court at 5pm at the office closinghour, litigants who had filed plaints before either or they or the office hadknowledge of the publication “did what was perfectly valid under the oldrules and they presented the plaints with Rs 30 stamp irrespective of thevalue of their claim”. Looking at it from the citizens’ perspective, thelearned Judge observed, on page 704:

“A person who files plaint which is properly stamped and whichis in order at the time of presentation is entitled to have his plaintadmitted on presentation though as matter of convenience theoffice receives the plaints and admits them at the end of the dayor later on. There seems to me to be very little justice or equity indirecting that persons who have done what was perfectly legaland valid act at the time should pay Court-fee which is muchhigher simply because notification was received at the close ofthe day making the higher fees chargeable from the date of thenotification. It may well be that if those persons had notice thatinstead of Rs. 30 they had to pay at least Rs 150 and maximumthat would range according to the value of their claim, they mightrather have compromised with the other side or might have hadresort to other proceedings like arbitration for settling their claims.I can find nothing to justify charging people, who filed their plaintson that day without knowledge of the notification which onlyreached the High Court at 5 p.m., with the higher fees in respectof plaints filed during the course of the day”.

A33. Mr Natraj, on behalf of the Union, submitted that Parliamenthas employed the phrase “on the date” without making reference totime. Hence, he submitted that irrespective of the time of the publicationor uploading of the notification under the Customs Tariff Act in the e-Gazette, the legislature has by legal fiction, enacted that the rate ofduty on imported goods will be the rate that is prevalent on the date ofBthe presentation of the bill of entry for home consumption. He submittedthat two different rates of duty cannot be applicable on the same day.Hence, according to the submission, once notification is issued underthe Customs Tariff Act, it will be notification in force on that date andapply with effect from the commencement of that date.C34. The decisions to which reference has been made earlier,have construed the expression “day” or, as the case may be, “date” invarying contexts ranging from the law governing elections, insuranceand limitation. general position in law has not been laid down that isdivorced from subject, context and statute. In interpreting the statute,

Dthe court is guided by the terms of its provisions, the purpose underlyingtheir adoption and the scheme which emerges from interrelated provisionsand the nature of the provision. The court in the present case isinterpreting the terms of fiscal levy. The court here has to construe thescheme and provisions of the Customs Act and their relationship withthe provisions of the Customs Tariff Act. The provision which falls forEconstruction is Section 15(1) of which both clauses (a) and (b) use theexpression “on the date”. In clause (a), the rate of duty and valuation isthe rate and valuation in force on the date on which bill of entry ispresented under Section 46 where goods are entered for homeconsumption. Under Clause (b), where goods are cleared from aFwarehouse under Section 68 it is the date on which bill of entry forhome consumption is presented under that Section which is determinativeof the rate and valuation.

35. Mr Natraj is textually right when he emphasizes that Section15 (1) contains reference to date and not time. But there are tworesponses to his line of approaching the issue. First, the legislature doesGnot always say everything on the subject. When it enacts law, everyconceivable eventuality which may arise in the future may not be presentto the mind of the lawmaker. Legislative silences create spaces forcreativity. Between interstices of legislative spaces and silences, thelaw is shaped by the robust application of common sense. Second,Hregulatory governance is evolving in India as new technology replaces

old and outmoded ways of functioning. The virtual world of electronicfilings was not on the horizon when Parliament enacted the CustomsAct in 1962. Yet the Parliament has responded to the rapid changeswhich have been brought about by the adoption of technology ingovernance. In the provisions of Section 17 and Section 46, the impactof ICT-based governance has been recognized by the legislature inproviding for the presentation of bills of entry in the electronic form onthe customs automated EDI system. Precision, transparency andseamless administration are key features of system which adoptstechnology in pursuit of efficiency. As we will explore in greater detaillater in this judgment, technology has enabled both administrators andcitizens to know precisely when an electronic record is uploaded. Theconsiderations which Parliament had in its view in providing for crucialamendments to the statutory scheme by moving from manual to electronicforms of governance in the assessment of duties must not be ignored.Tax administration must leave behind the culture of an age in which theassessment of duty was wrought with delays, discretion, doubt andsometimes, the dubious. The interpretation of the court must aid inestablishing system which ensures certainty for citizens, ease ofapplication and efficiency of administration.36. It is with these principles of interpretation in mind that wemust evaluate the submission which was urged by Mr Nataraj, on behalfof the Union, that upon the issuance of notification enhancing the rateof duty under Section 8A of the Customs Tariff Act, the date on whichthe notification was issued will govern the rate applicable to all bills ofentry, including those which were presented before the enhanced ratewas 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). Anotification under Section 8A(1) of the Customs Tariff Act, even thoughit has the effect of amending the First Schedule, takes effectprospectively. Section 8A does not confer upon the notification anoperation anterior to its making. In the language of the law, its operationis prospective. To accept the submission of the ASG would mean thatthe 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 thepoint of its adoption, it cannot operate to displace the rate of duty whichis applicable when bill of entry is presented for home consumptionunder Section 46.

AThe submission of the Union cannot be accepted in view of theprovisions contained in Section 46 for the presentation of bill of entryfor home consumption in an electronic form on the customs automatedsystem. While making that provision, specifically by means of anamendment by Act 8 of 2011 and later by the Finance Act of 2018,Parliament used the expression “in such form and manner as may beBprescribed.” Regulation 4(2) of the Regulations of 2018 provides whenthe bill of entry shall be deemed to have been filed and self- assessmentcompleted. The legal fiction which has been embodied in Regulation4(2) emanates from the enabling provisions of Section 46. The provisionsof Sections 15(1)(a), 17, 46(1) and 47(2)(a) constitute one compositeCscheme. As result of the modalities prescribed for the electronicpresentation of the bill of entry and self-assessment after the entry ofthe electronic declaration on the customs automated system, bill ofentry number is generated by the EDI system for the declaration.Regulation 4(2) provides for deeming fiction in regard to the filing ofthe bill of entry and the completion of self-assessment. In the context ofDthese specific provisions, it would do violence to the overall scheme ofthe statute to interpret the language of Section 15(1)(a) in the manner inwhich it is sought to be interpreted by the ASG. The submission of theASG, simply put, is that because notification 5/2019 was issued on 16February 2019, the court must regardless of the time at which it wasEuploaded on the e-Gazette treat it as being in existence with effect frommidnight or 0000 hours on 16 February 2019. The consequence of thisinterpretation would be to do violence to the language of Section 8A(1)of the Customs Tariff Act, and to disregard the meaning, intent andpurpose underlying the adoption of provisions in the Customs Act inregard to the electronic filing of the bill of entry and the completion ofFself-assessment.

I Notification under Section 8A of the Customs Tariff Act

37. The second and alternative limb of the submissions of theASG postulates that notification under Section 8A(1) of the CustomsGTariff Act is legislative act. The rates of duty applicable to differentcategories of goods imported into India are set out in the First scheduleto the Customs Tariff Act. notification under Section 8A(1) amendsthe First schedule. Hence, the submission is that the schedule being apart of the Act, any amendment made to it by notification is anamendment to the Act. The ASG relies upon the decisions of this CourtHin Video Electronics (P) Ltd vs. State of Punjab[18]and TN ElectricityBoard vs. Status Spinning Mills Limited[19]in support of the principlethat subordinate legislation validly made in pursuance of legislativeprovision is to be read as if it is part of the enactment. Hence, forinstance, an exemption granted under notification made in pursuanceof statutory provision must be construed as if it is contained in thelegislation.

38. In order to consider the submission, it is necessary at theoutset to advert to the provisions of the Customs Tariff Act. Under Section8A, an emergency power is vested in the Central Government to increasethe import duties leviable on an article included in the First schedulewhere it is satisfied that circumstances rendering it necessary to takeimmediate action exist. Section 8A is in the following terms:

“8A- Emergency Power of Central Government to increase importduties-

Where in respect of any article included in the FirstSchedule, the Central Government is satisfied that theimport duty leviable thereon under section 12 of theCustoms Act, 1962 (52 of 1962) should be increased andthat circumstances exist which render it necessary to takeimmediate action, it may, by notification in the OfficialGazette, direct an amendment of that Schedule to be madeso as to provide for an increase in the import duty leviableon such article to such extent as it thinks necessary:

Provided that the Central Government shall not issue anynotification under this subsection for substituting the rate of importduty in respect of any article as specified by an earlier notificationissued under this sub-section by that Government before suchearlier notification has been approved with or without modificationsunder sub-section (2).

(2) The provisions of sub-sections (3) and (4) of section 7shall apply to any notification issued under sub-section (1)as they apply in relation to any notification increasing dutyissued under sub-section (2) of section 7.”

18 (1990) 3 SCC 87

19 (2008) 7 SCC 353

AWhile Section 8A is an emergency power, Section 11A empowersthe Central government in public interest to amend the First schedule:

“(1) Where the Central Government is satisfied that it is necessaryso to do in the public interest, it may, by notification in the OfficialGazette, amend the First Schedule:

BProvided that such amendment shall not alter or affect in anymanner the rates specified in that Schedule in respect of goods atwhich duties of customs shall be leviable on the goods under theCustoms Act, 1962 (52 of 1962).”

Sub-section (2) of Section 8A specifies that the provisions of sub-Csections (3) and (4) of Section 7 shall apply to notification which hasbeen issued under sub- section (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 itDrelates to increase of such duty, shall be laid before eachHouse of Parliament if it is sitting as soon as may be afterthe issue of the notification, and if it is not sitting withinseven days of its re-assembly, and the Central Governmentshall seek the approval of Parliament to the notification bya resolution moved within period of fifteen days beginningEwith the day on which the notification is so laid before theHouse of the People and if Parliament makes anymodification in the notification or directs that the notificationshould cease to have effect, the notification shall thereafterhave effect only in such modified form or be of no effect, asFthe case may be, but without prejudice to the validity ofanything previously done thereunder.

(4) For the removal of doubts, it is hereby declared that anynotification issued under sub-section (2), including any suchnotification approved or modified under sub-section (3), may berescinded by the Central Government at any time by notificationGin the Official Gazette.”

(emphasis supplied)

Under sub-section (3) of Section 7, the Central government isrequired to seek the approval of Parliament to notification within aHperiod 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 theHouse as soon as may be after it is issued and, if it is not, then withinseven days of the legislature re-assembling. The approval of parliamenthas to be sought within the specified period. The notification would ceaseto have effect or take effect with modifications, if Parliament so directs.In the case of notification which has been issued under Section 11A,sub-section (2) does not require the Central government to seek theapproval of Parliament to the notification by resolution moved within aperiod of fifteen days from the date on which the notification has beenlaid before the House of the People. Sub-section (2) of Section 11Amerely states that the notification shall either cease to have effect orhave effect in modified form if it is so directed by both the Houses ofParliament.

39. notification which is issued in terms of the provisions ofSub-section (1) of Section 8A is akin to the exercise of delegatedlegislative power. The Central government is empowered to issue anotification enhancing the rate of duty where it is satisfied that immediateaction is necessary to increase the rate of customs duty on an articlespecified in the First schedule. The effect of the notification is to amendthe First schedule to the Customs Tariff Act in respect of the importduty leviable on an article under Section 12 of the Customs Act. Inissuing notification under Sub-section (1) of Section 8A, the Central

government exercises power as delegate of the legislature. The issuenow to be considered is whether the notification that was issued by theCentral government under Section 8A(1) at 20:46:58 hours on 16 February2019 took effect commencing from 0000 hours on that day. The ASGrelied on the provisions of the General Clauses Act in support of hissubmission 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, Central Act or Regulationshall be construed as coming into operation immediately on theexpiration of the day preceding its commencement.”

The above provision applies to “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 immediatelyon the expiration of the day preceding its commencement. The

ABCDE

Aexpressions “Central Act” and “Regulation” are defined by the statute.The expression “Central Act” is defined in Section 3(7) in the followingterms:

“(7) “Central Act” shall means an Act of Parliament, and shallinclude—B(a) an Act of the Dominion Legislature or of the Indian Legislaturepassed before the commencement of the Constitution, and

(b) an Act made before such commencement by the GovernorGeneral in Council or the Governor General, acting in legislativecapacity;”C

The expression “Regulation” is defined in Section 3(50) as follows:

“(50) “Regulation” shall mean Regulation made by the Presidentunder article 240 of the Constitution and shall include Regulationmade by the President under article 243 thereof and RegulationDmade by the Central Government under the Government of IndiaAct, 1870, or the Government of India Act, 1915, or theGovernment of India Act, 1935;”

The expression “commencement” is defined in Section 3(13) asfollows:E“(13) “Commencement” used with reference to an Act orRegulation, shall mean the day on which the Act or Regulationcomes into force.”

The definition of the expression “commencement’ is also relatableto “Central Act” or “Regulation”.F

41. notification issued by the Central government under sub-section (1) of Section 8A does not fulfill the description of Regulationunder Section 3(50) of the General Clauses Act. The expression isconfined to specific species of Regulations. The definition does not extendto all subordinate legislation or to notifications issued by delegate ofGthe legislature acting in pursuance of statutory authority.

42. The expression “Central Act” is defined by using theexpressions “shall mean” and “shall include”. The use of these expressionsindicates that the definition is exhaustive. Insofar as is relevant, theexpression ‘Central Act’ is defined to mean an Act of Parliament. AHnotification which has been issued under Sub-section (1) of Section 8A

of the Customs Tariff Act is not an Act of Parliament. The notificationhas the effect of amending the First schedule. The Central governmentas delegate of the legislature has been entrusted with the authority toissue such notification. That does not make the notification an Act ofParliament.

43. The above analysis is based on textual reading of the twodefinitions – those of “Central Act” and “Regulation”. The precedenton the subject confirms the analysis. This Court has held that the merefact that piece of delegated legislation has been issued in exercise of alegislatively conferred power does not bring the delegated legislationwithin 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, ifRules 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 itsinterpretation of ‘repeal’ through omission [which does not have bearingon the issue at hand], was not assailed for its interpretation of “CentralAct” within the General Clauses Act. Speaking through Justice D.P.Mohapatra, this Court answered the question of whether the aforesaidRules constituted ‘Central Act’ in the negative, in the following terms:

“32. When the term Central Act or Regulation or Rule is used inthat Act reference has to be made to the definition of that term inthe statute. It is not possible nor permissible to give meaning toany of the terms different from the definition. It is manifest thateach term has distinct and separate meaning attributed to it forthe purpose of the Act. Therefore, when the question to beconsidered is whether particular provision of the Act applies ina case then the clear and unambiguous language of that provisionhas to be given its true meaning and import. The Full Bench hasequated ‘rule’ with ‘statute’. In our considered view this isimpermissible in view of the specific provisions in the Act. Whenthe Legislature by clear and unambiguous language has extendedthe provision of Section 6 to cases of repeal of ‘Central Act’ or‘Regulation’, it is not possible to apply the provision to case ofrepeal of ‘Rule’. The position will not be different even if the

Arule has been framed by virtue of the power vested under anenactment; it remains ‘rule’ and takes its colour from the definitionof the term in the Act (General Clauses Act).”

45. In Securities and Exchange Board of India vs. MagnumEquity Services Ltd[21], two judge Bench of this Court consideredBwhether the General Clauses Act is applicable to the interpretation ofthe SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992. The Courtobserved that the Regulations were framed by SEBI in exercise of thepowers conferred on it by Section 30 of the SEBI Act, 1992. Section 31requires the rules and regulations to be laid before Parliament. JusticeVikramajit Sen concluded as follows:C

“12. The main contention raised by the learned Senior Counselfor the appellant is based on the application of the General ClausesAct, 1897 which under Section 13(2) states that plural includessingular. However, before we consider Section 13, we shall haveto determine whether the General Clauses Act itself is applicableDto the SEBI (Stockbrokers and Sub-Brokers) Regulations, 1992.Section 3 of the General Clauses Act, 1897 states that the saidAct is applicable to all Central Acts and Regulations made afterthe commencement of this Act. Further, the term “Central Act”has been defined under sub-section (7) as an Act of Parliament,Ewhich includes (a) an Act of the Dominion Legislature or of theIndian Legislature passed before the commencement of theConstitution, and (b) an Act made before such commencementby the Governor General in Council or the Governor General,acting in legislative capacity. The SEBI (Stockbrokers and Sub-FBrokers) Regulations, 1992 are issued by SEBI in exercise of thepowers conferred on it under Section 30 of the SEBI Act, 1992.Section 31 of the SEBI Act, reproduced below for the facility ofreference, provides that the Rules and Regulations are to be laidbefore Parliament:

“31. Rules and regulations to be laid before Parliament.—GEvery rule and every regulation made under this Act shall belaid, as soon as may be after it is made, before each House ofParliament, while it is in session, for total period of thirtydays which may be comprised in one session or in two or more

successive sessions, and if, before the expiry of the sessionimmediately following the session or the successive sessionsaforesaid, both Houses agree in making any modification inthe rule or regulation or both Houses agree that the rule orregulation should not be made, the rule or regulation shallthereafter have effect only in such modified form or be of noeffect, as the case may be; so, however, that any suchmodification or annulment shall be without prejudice to thevalidity of anything previously done under that rule orregulation.”

13. Thus in light of the provisions of the SEBI Act, 1992 underwhich the said Regulations have been issued, the latter do nottantamount to Central Act as defined Under Sub-section (7) ofthe definition clause of The General Clauses Act, 1897.”

The Regulations framed under the SEBI Act were held not to fallwithin the definition of ‘Central Act’ contained in Section 3(7) of theGeneral Clauses Act.

46. Notification 05/2019 was issued by the Central Governmentunder the delegated authority to increase emergency tariff duties underSection 8A of the Customs Tariff Act, 1975. The notification has beenissued in pursuance of statutory power. The notification has the effectof enhancing the rate of duty prescribed in the First Schedule to theCustoms Tariff Act. That does not, transform the notification which hasbeen issued in pursuance of statutory authority into ‘Central Act’.

K Information Technology Act, 2000

47. While enacting the Information Technology Act 2000,Parliament envisioned regime of electronic governance. The legislationrecognizes that information technology is facilitative instrument forcreating an efficient framework for e-commerce. Providing the backdropfor Parliamentary intervention, the Statement of Objects and Reasonsunderlying the enactment of the legislation provides the rationale for thelaw:

“New communication systems and digital technology have madedramatic changes in the way we live. revolution is occurring inthe way people transact business. Businesses and consumers areincreasingly using computers to create, transmit and storeinformation in the electronic form instead of traditional paper

Adocuments. Information stored in electronic form has manyadvantages. It is cheaper, easier to store, retrieve and speedier tocommunicate. Although people are aware of these advantages,they are reluctant to conduct business or conclude any transactionin the electronic form due to lack of appropriate legal framework.The two principal hurdles which stand in the way of facilitatingBelectronic commerce and electronic government are therequirements as to writing and signature for legal recognition. Atpresent many legal provisions assume the existence of paper basedrecords and documents and records which should bear signatures.The law of evidence is traditionally based upon paper basedCrecords and oral testimony. Since electronic commerce eliminatesthe need for paper-based transactions, hence to facilitate e-commerce, the need for legal changes have become an urgentnecessity. International trade through the medium of e-commerceis growing rapidly in the past few years and many countries haveswitched over from traditional paper based commerce to e-Dcommerce.”

48. Parliament recognized the need to bring about suitableamendments to existing legislation to facilitate e-commerce, more so inlight of India being signatory to the United Nations Commission onInternational Trade Law’s Model Law on Electronic Commerce in 1996.EIt therefore proposed to provide legal recognition of electronic recordsand digital signatures. This would, as the Statement of Objects andReasons indicate, “enable the conclusion of contracts and the creationof rights and obligations through the electronic medium”. Parliamentenvisaged the use and acceptance of electronic records and digital

Fsignatures in governmental offices and agencies, to facilitate electronicgovernance and to “make the citizens’ interaction with the governmentaloffices hassle free”.

Bearing the legislative number of Act 21 of 2000, the law cameinto force on 17 October 2000. The long title to the legislation providesGthat it is:

“An Act to provide legal recognition for transactions carried outby means of electronic data interchange and other means ofelectronic communication, commonly referred to as “electroniccommerce”, which involve the use of alternatives to paper-basedHmethods of communication and storage of information, to facilitate

electronic filing of documents with the Government agencies andfurther to amend the Indian Penal Code, the Indian Evidence Act,1872 , the Banker’s Book Evidence Act, 1891 and the ReserveBank of India Act, 1934 and for matters connected therewith orincidental thereto.”

Section 2(t) defines the expression ‘electronic record’:

“(t) ¯electronic record means data, record or data generated, imageor sound stored, received or sent in an electronic form or microfilm or computer generated micro fiche”

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 ingovernment and its agencies (Section 6);D

(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 bearing on the issues raised inthis case:

“6. Use of electronic records and electronic signatures inGovernment and its agencies- (1) Where any law provides for—(a) the filing of any form, application or any other document withany office, authority, body or agency owned or controlled by theappropriate Government in particular manner;

(b) the issue or grant of any licence, permit, sanction or approvalby whatever name called in particular manner;

(c) the receipt or payment of money in particular manner, then,notwithstanding anything contained in any other law for the timebeing in force, such requirement shall be deemed to have beensatisfied if such filing, issue, grant, receipt or payment, as thecase may be, is effected by means of such electronic form asmay be prescribed by the appropriate Government.”

ASection 6A contemplates that for the “efficient delivery of servicesto the public through electronic means”, government may authorize aservice provider to set up, maintain and upgrade computerized facilitiesand perform other services. Section 7 provides legal support to theretention of records in the electronic form. Where law requiresdocuments, information or records to be preserved, the requirement isBsatisfied by preserving them in an electronic form, subject to the fulfillmentof conditions. One of the conditions stipulated by Section 7(1)(c) is thatthe details which facilitate the identification of the origin, destination,date and time of dispatch or the receipt of the electronic record areavailable in the electronic record. The date and time of receipt or of theCdispatch of an electronic record are crucial from this perspective to themaintenance of an electronic record.

49. In exercise of its rule making power, the Central Governmentformulated rules for electronic service delivery. Under these rules, calledthe Information Technology (Electronic Service Delivery) Rules 2011,Dgovernmental authorities must maintain time stamps of the creation ofelectronic records. Rule 5(1) incorporates such requirement in thefollowing terms:

“5. Creation of repository of electronically signed electronicrecords by Government Authorities.-

(1) All authorities that issue any license, permit, certificate, sanctionor approval electronically, shall create, archive and maintain arepository of electronically signed electronic records of suchlicenses, permits, certificates, sanctions or approvals, as the casemay be, online with due timestamps of creation of these individualelectronic records.”F

The Rules provide procedure for making changes in the repositoryof electronically signed electronic records, in Rule 6. Rule 6(2) indicatesthat the person authorized to make change must also electronicallysign the change and the time stamps of the original creation andGmodification of the electronic record. Rule 6(2) reads thus:

“6. Procedure for making changes in repository of electronicallysigned electronic records.-

(2) Any change effected to any record in repository ofelectronically signed electronic records and any addition or deletionHof record from such repository shall be electronically signed by

the person who is authorized to make such changes along withthe time stamps of original creation and modification times”

Digital signatures have contextual information including the dateand time built into them. Under the Digital Signature (End entity) Rules2015, provisions for time stamps for digital signatures are built into thelegal regime under Rule 4(4) and, in the context of long term validdigital signature, in Rule 4(7).

Section 13 of the Information Technology Act 2000 containsprovisions for the time and place of the dispatch and receipt of electronicrecords. It reads as follows:

“13. Time and place of dispatch and receipt of electronic record.—

(1) Save as otherwise agreed to between the originator andthe addressee, the dispatch of an electronic record occurswhen it enters computer resource outside the control ofthe originator.

(2) Save as otherwise agreed between the originator and theaddressee, the time of receipt of an electronic record shall bedetermined as follows, namely:—

(a) if the addressee has designated computer resource for thepurpose of receiving electronic records,—

(i) receipt occurs at the time when the electronic record entersthe designated computer resource; or

(ii) if the electronic record is sent to computer resource of theaddressee that is not the designated computer resource, receiptoccurs at the time when the electronic record is retrieved by theaddressee;

(b) if the addressee has not designated computer resource alongwith specified timings, if any, receipt occurs when the electronicrecord enters the computer resource of the addressee…..”

(emphasis supplied)

The dispatch of record occurs when it enters computerresource outside the control of the originator. The time of receipt of theelectronic record is fixed by the provisions of sub-section 2 of Section13. When the addressee has designated computer resource, receiptoccurs when the record enters the computer resource so designated.

AOtherwise, where no computer resource is designated, the receipt ofthe record is when it is retrieved by the addressee. These provisionshave been incorporated in the law to enable the dispatch and receipt ofa record in the electronic form to be defined with precision with referenceto both- time and place.B50. In the above context, it is to be noted that the rate of customsduty is determined on the date on which the bill of entry for homeconsumption is presented (Section 15). The presentation of the bill ofentry has to be made electronically (Section 46 read with the 2018Regulations). The presentation is required to be made on the customsautomated system. The provisions in the Customs Act for the electronicCpresentation of the bill of entry for home consumption and for self-assessment have to be read in the context of Section 13 of the InformationTechnology Act which recognizes “the dispatch of an electronic record”and “the time of receipt of an electronic record”. The legal regimeenvisaging the electronic presentation of records, such as the presentationDof bill of entry, has been imparted precision as result of the enablingframework of the Information Technology Act under which these recordsare maintained. The presentation of the bill of entry under Section 46 ismade electronically and is captured with time stamps in terms of therequirements of the Information Technology Act read with Rule 5(1) ofthe Information Technology (Electronic Service Delivery) Rules 2011.EL Effect of notifications issued in e-gazettes

51. Section 8 of the Information Technology Act, 2000 creates alegal basis for the publication of laws through e-gazettes. It reads asfollows:“Section 8 - Publication of rule, regulation, etc., in ElectronicFGazette-

Where any law provides that any rule, regulation, order, bye- law,notification or any other matter shall be published in the OfficialGazette, then, such requirement shall be deemed to have beensatisfied if such rule, regulation, order, bye-law, notification or anyGother matter is published in the Official Gazette or ElectronicGazette:

Provided that where any rule, regulation, order, by-law, notificationor any other matter is published in the Official Gazette or ElectronicGazette, the date of publication shall be deemed to be the date ofHthe Gazette which was first published in any form.”

52. On 30 September 2015, the Ministry of Urban Developmentissued an Office Memorandum numbered No. O-17022/1/2015-PSP-lwhich discontinued the practice of physical printing and replaced it withthe electronic gazette. The notification, in relevant part, reads as follows:

“In compliance with the provisions of Section 8 of the InformationTechnology Act, 2000, it has been decided in consultation withDepartment of Legal Affairs to switch over to exclusive e-publishing of the Government of India Gazette Notification on itsofficial website with effect from 01.10.2015 and to do away withthe physical printing of Gazette Notification. The date of-publishing shall be the date of publication on officialwebsite by way of electronic gazette in respect of Gazettenotification.”

(emphasis supplied)

53. Thus far, this Court has not had to confront the question as towhether the shift from the analog to the digital for Gazette notificationshas any bearing for ascertaining when they come into force. Thejudgments which dealt with the starting point for the enforceability ofnotifications were all concerned with circumstances in which suchpublication took place in the physical gazette. We are now required todetermine if the shift to electronic gazettes has brought about changein this position.

54. The High Courts have begun offering guidance on this score.The Delhi High Court in M.D. Overseas Industries vs. Union ofIndia[22], dealt with situation where the Director General of ForeignTrade issued two notifications dated 25 August 2017 restricting theimportation of gold, including gold coins. Gold coins could no longer beimported freely and had to be imported in accordance with publicnotice issued in that behalf. The petitioners urged that the restrictiveregime created by these notifications was inapplicable to them becausethe notifications, they contended, came into force only on 28 August,2017, when they were published in the official gazette. The gold coinsimported by the petitioners, however, were dispatched on 25 August,2017. Since the notifications came into force three days later, theycontended that these were inapplicable to them. The notifications wereelectronically notified in the gazette.

A55. The High Court upheld the Petitioner’s view that thenotifications were inapplicable to the petitioners after considering Section8 of the Information Technology Act, 2000 along with the OfficeMemorandum dated 30.9.2015. It held:

“32. The endorsement on the electronic copy of the Gazette,Bwhereby the impugned Notification Nos. 24 and 25, dated 25thAugust, 2017, were notified, seen in juxtaposition with Section 8of the IT Act, and of the OM dated 30th September, 2015 supra,of the Ministry of Urban Development, makes it clear that theimpugned Notification Nos. 24 and 25, dated 25th August, 2017were, in fact, electronically published in the Official Gazette onlyCat or after 10:47 p.m. on 28th August, 2017.

33. It has been conclusively held, by the Supreme Court, in acatena of decisions - including Harla v. State of Rajasthan [1952(1) SCR 110], B.K. Srinivasan v. State of Karnataka [AIR 1987SC 1059] and U.O.I, v. Param Industries [(2016) 16 SCC 692]Dthat, notifications would come into force on their publicationin the Official Gazette, i.e. in the present case, with effectfrom the date and time when they were electronicallyprinted in the Gazette, which was at or after 10:47 p.m. on28th August, 2017.”

E(emphasis supplied)

56. Thus, the High Court regarded the time of publication as therelevant marker for determining the enforceability of the notifications.The issue of determining the starting point for the enforceability of anotification in the electronic gazette was considered by the AndhraFPradesh High Court in Ruchi Soya Industries vs. Union of India.[23]The petitioner entered into contract with its foreign supplier on 18January 2008 for the import of 9,500 Metric Tons of crude oil. The firstconsignment of 4000 metric tons was shipped by the supplier on 6February 2018 from Dubai. The petitioner filed two bills of entry for2000 metric tons of crude oil on 1 March 2018. They were assessed thatGday and levied with 30% customs duty and 10% social welfare surcharge.On the same date, notification raised the basic customs duty from 30to 44%. The petitioner filed four bills of entry for the remaining 2000tons on 2 March 2018 and argued that the revised rate was not applicable

23 W.P. No. 4533 and 4534 of 2019 decided on 28 September 2019 (Andhra PradeshHHigh Court)

to it because the notification was published in the electronic gazette onlyon 6 March 2018. The High Court agreed with the petitioner and heldthat the revised notification would come into force only after it wasdigitally signed by the competent official and uploaded and published inthe official gazette. The relevant excerpt from page 41 of the HighCourt’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 termsof Section 8 of the…Information Technology Act, to avoid physicalprinting of Gazette notification to publish the same exclusively byelectronic mode, so as to attribute knowledge to the public at large.The notification was signed by Rakesh Sukul on 6.3.2018 at19:15:13 + 05’30'. When notification needs to be signed digitallyand only when the notification was uploaded and published in theOfficial Gazette, the same is made available for public.”

57. The Madras High Court dealt with similar situation in RuchiSoya Industries vs. Union of India[24]and held that the decision of theA.P. High Court noted above was applicable to the case before it. As aresult, it allowed the writ petition on the same terms and directed theRespondent to refund the enhanced duty collected from the petitioner,along with IGST.

58. With the change in the manner of publishing gazette notificationsfrom analog to digital, the precise time when the gazette is published inthe electronic mode assumes significance. Notification 5/2019, which isakin to the exercise of delegated legislative power, under the emergencypower to notify and revise tariff duty under Section 8A of the CustomsTariff Act, 1975, cannot operate retrospectively, unless authorized bystatute. In the era of the electronic publication of gazette notificationsand electronic filing of bills of entry, the revised rate of import dutyunder the Notification 5/2019 applies to bills of entry presented for homeconsumption after the notification was uploaded in the e-Gazette at20:46:58 hours on 16 February 2019.

59. The impugned High Court judgement has relied on the decisionof the Karnataka High Court in Param Industries Ltd. vs. Union ofIndia[25], which was confirmed by the decision of this Court in Union of

24 W.P. No. 21207 of 2018 decided on 14 July 2020 (Madras High Court).25 2002 (150) E.L.T. 3 (Kar)

AIndia vs. Param Industries Limited[26] [“Param Industries”] In thatcase, the respondents were in the business of importing and exportingedible oil. The respondents imported RBD Palmolein which was clearedafter payment of import duty of 85 per cent of its value. The import dutywas paid pursuant to notification which was in existence as on thatdate. major quantity of the goods had been removed from theBwarehouse after the payment of duty. The importer was, however,informed that by notification dated 3 August 2001 (incidentally thiswas also the date the bill of entry was filed and goods were cleared) thetariff value had been raised to USD 372 per metric tonne and that theimporter was liable to pay the difference in the tariff which was paid onCthe basis of the earlier notification. The respondent contested the demandon the ground that the notification raising the import duty had not comeinto effect on 3 August 2001. The Division Bench of the High Court heldthat the notification was not published on 3 August 2001 and must havebeen Gazetted only after the following weekend namely on 6 August2001 or thereafter; the Gazette issued containing notification was offeredDfor sale only starting from 6 August 2001; and that the mere publicationof the notification on the website and the issuance of letter to theAssistant Controller, Government of India (Press) was not sufficient forthe notification to be operational and enforceable on 3 August 2001.This Court in appeal observed that according to the High Court twoEconditions 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 bythe Directorate of Publicity and Public Relations of the Board,New Delhi.F

This Court noted that, in their case, the second condition was notsatisfied as the notification was offered for sale only on 6 August 2001as it was published in the late evening hours of 3 August 2001 and thenext two days were holidays.

60. The decision of this Court in Param Industries was on theGinterpretation of Section 14(2) of the Customs Act. However, primafacie, this decision appears to be contrary to the principles previouslyelucidated by this Court in the context of the Customs Act. In twojudge Bench decision of this Court in Pankaj Jain Agencies vs. Union

of India,[27] [“Pankaj Jain”] the Court considered the determination ofthe date when notification dealing with an exemption would come intoforce. The mode of publication for such notifications is prescribedseparately under Section 25 of the Customs Act. The Court held:

“17. In the present case indisputably the mode of publicationprescribed by Section 25(1) was complied with. The notificationwas published in the Official Gazette on the 13-2- 1986. As to theeffect 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 legislationitself prescribes the manner of publication, such mode ofpublication may be sufficient, if reasonable. If the subordinatelegislation does not prescribe the mode of publication or ifthe subordinate legislation prescribes plainly unreasonablemode of publication, it will take effect only when it ispublished through the customarily recognized officialchannel, namely, the Official Gazette or some otherreasonable mode of publication.”

18. We, therefore, see no substance in the contention thatnotwithstanding the publication in the Official Gazette there wasyet failure to make the law known and that, therefore, thenotification did not acquire the elements of operativeness andenforceability.”

(emphasis supplied)

The principles recognized in Pankaj Jain were re-iterated andaffirmed by three judge Bench of this Court in Union of India vs.Ganesh Das Bhojraj[28]which dealt with the enforceability of anotification under Section 25, prior to its Amendment by Act 21 of 1998which 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 factualscenario concerning notification governed by the pre-amended act, itupheld the principle that any additional requirement of publication canonly be introduced by statute and the Court is bound by the applicablestatutory scheme for determining enforceability. It noted:

27 (1994) 5 SCC 198

28 (2000) 9 SCC 461.

A“11. In our view, as noted above, in Pankaj Jain Agencies case[(1994) 5 SCC 198] the Court directly dealt with similar contentionand after relying upon the decision in the case of Mayer HansGeorge [AIR 1965 SC 722 : (1965) 1 Cri LJ

641 : (1965) 1 SCR 123] rejected the same. That decision isBfollowed in I.T.C. Ltd. [(1996) 5 SCC 538] and other matters.Hence, it is difficult to agree that the decision in Pankaj JainAgencies case [(1994) 5 SCC 198] was not helpful in decidingthe question dealt with by the Court. Section 25 of the CustomsAct empowers the Central Government to exempt eitherabsolutely or subject to such conditions, from the whole orCany part of the duty of customs leviable thereon by anotification in the Official Gazette. The said notification canbe modified or cancelled. The method and mode providedfor grant of exemption or withdrawal of exemption isissuance of notification in the Official Gazette. For bringingDthe notification into operation, the only requirement of thesection is its publication in the Official Gazette and nofurther publication is contemplated. Additional requirement isthat under Section 159 such notification is required to be laid beforeeach House of Parliament for period of thirty days as prescribedtherein. Hence, in our view Mayer Hans George [AIR 1965ESC 722 : (1965) 1 Cri LJ 641 : (1965) 1 SCR 123] which isfollowed in Pankaj Jain Agencies case [(1994) 5 SCC 198]represents the correct exposition of law and the notificationunder Section 25 of the Customs Act would come intooperation as soon as it is published in the Gazette of IndiaFi.e. the date of publication of the Gazette. Apart from theprescribed requirement under Section 25, the usual modeof bringing into operation such notification followed sinceyears in this country is its publication in the Official Gazetteand there is no reason to depart from the same by layingdown additional requirement.”

(emphasis supplied)

61. Param Industries, in as much as it imposed an additionalrequirement of ‘offering for sale’, outside of the prescribed statutoryscheme under S.14(2) of the Customs Act, 1962, appears to be contraryHto pre-existing principles. Having said this, we do not wish to rule on the

validity of Param Industries or its consequent impact on decisions thathave relied on it. In the present judgment it is not necessary to takerecourse to the line of reasoning in Param Industries. The situation athand, operates on landscape which is significantly altered by theregulatory regime in the electronic age where, both – uploading ofnotifications in the e-gazette and filing of bills of entry- are in the electronicform. As we have previously noted, Notification 5/2019 was uploaded inthe e-gazette at specific time and date and cannot apply to bills ofentry which were presented on the customs automated EDI systemprior to it, attracting the legal fiction set out in Regulation 4(2) of the2018 Regulations. Therefore, Param Industries does not have anybearing on the case at hand.

M Retrospectivity

62. Section 8A of the Customs Tariff Act confers an emergencypower upon the Central government to increase import duties “in respectof any article included in the first schedule”. By the notification dated 16February 2019, the Union Ministry of Finance in the Department ofRevenue introduced distinct tariff item – 980 60 000 - encompassing“all goods originating in or exported from the Islamic Republic ofPakistan” for which rate of duty of 200 per cent has been prescribed.The exercise of the power under Section 8A is contingent on thesatisfaction of the Central government that (i) the duty on any article inthe first schedule should be increased; and (ii) that circumstances existwhich render it necessary to take immediate action. The Centralgovernment in the exercise of this power may by notification in theofficial gazette direct an amendment of the schedule to be made “so asto provide for an increase in the import duty leviable on such article tosuch extent as it thinks necessary”. Section 8A does not contain languageindicative of legislative intent to authorize the Central government torelate back the exercise of the power to period prior to its exercise.The exercise of the power under Section 8A (2) is governed by theprescriptions contained in sub-sections (3) and (4) of Section 7. Theconferment of the power has not been made retrospective eitherexpressly or by necessary implication.

63. Section 8A enables the Central government to increase therate of duty on an article in the first schedule in emergent situations. Thenotification dated 16 February 2019 adds new entry altogether. Suchan exercise may well be regarded as relatable to the provisions of Section

A11A. Section 11A confers power on the Central Government to amendthe First schedule in public interest. Section 8A on the other handcontemplates an increase in duty on an article contained in the Firstschedule. Notification 5/2019 introduces new tariff entry to providefor duty of 200% on all articles originating in or exported from Pakistan.However, this aspect of the matter need not be explored further for theBreason that neither before the High Court, nor before this Court, was thechallenge to the vires of the notification pressed during the course of thesubmissions. The legal position which needs emphasis is that theentrustment of the power to issue notification enhancing the rate ofduty under Section 8A is not accompanied by statutory entrustment ofCauthority to the Central government to exercise it with retrospectiveeffect. An enhancement of the rate of duty pursuant to the exercise ofpower under Section 8A can only be prospective.64. Parliament and the state legislatures are entrusted with thepower to enact legislation under Articles 245 and 246 of the Constitution.DParliament and the state legislatures possess the plenary power to enactlegislation, with prospective and retrospective effect, subject to dueobservance of constitutional requirements. notification issued by thegovernment pursuant to the conferment of statutory power is distinctfrom an act of the legislature. Administrative notifications, even when

they are issued in pursuance of an enabling statutory framework, areEsubject to the statute. Delegated legislation does not lose its charactereven when it has the same force and effect as if it is contained in thestatute. This is settled position of law. In decision which was renderedin 1961 by Constitution Bench of this Court in Chief Inspector ofMines vs. Lala Karam Chand Thapar[29], the principle of law wasFformulated in the following terms:“20. The true position appears to be that the rules and regulationsdo not lose their character as rules and regulations, even thoughthey are to be of the same effect as if contained in the Act. Theycontinue to be rules subordinate to the Act, and though for certainpurposes, including the purpose of construction, they are to beGtreated as if contained in the Act, their true nature as subordinaterule is not lost….”In K I Shepard vs. Union of India[30], two judge Bench of thisCourt held that the power to frame scheme under Section 45 of the29 AIR 1961 SC 838H30 (1987) 4 SCC 431

Banking Regulation Act 1949 was not legislative in character but anadministrative function. This Court observed:

“9…But is the scheme-making process legislative? Power hasbeen conferred on the RBI in certain situations to take steps forapplying to the Central Government for an order of moratoriumand during the period of moratorium to propose either reconstructionor amalgamation of the banking company. scheme for thepurposes contemplated has to be framed by RBI and placed beforethe Central Government for sanction. Power has been vested inthe Central Government in terms of what is ordinarily known as aHenry VIII clause for making orders for removal of difficulties.Section 45(11) requires that copies of the schemes as also suchorders made by the Central Government are to be placed beforeboth Houses of Parliament. We do not think this requirementmakes the exercise in regard to schemes legislative process.”

The above decision was distinguished in New Bank of IndiaEmployees’ Union vs. Union of India[31][“New Bank of India”] wherethe court held that scheme framed under Section 9 of the BankingCompanies (Acquisition and Transfer of Undertakings) Act 1980 standson distinct footing of being legislative and not an administrativefunction. The court held that the question was not of much relevance inview of its conclusions on the main issues presented for decision. Yet, itconsidered the question and laid emphasis on the authority entrusted toParliament to consider, within 30 days, to agree/modify/arrive at anydecision with regards to the scheme, only thereafter was the schemewas to have effect. These requirements, qualitatively distinguished froma requirement of mere ‘laying’ under Section 45 of the Banking RegulationAct 1949, were pivotal in the court’s view that scheme under the 1980Act has legislative character. Mr Natraj sought to emphasize similarargument, 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 sine qua non forparliamentary sanction before the notification is enforceable, the decisionof New Bank of India provides little anchor. For the purpose of thepresent decision the point which needs emphasis is that in empoweringthe Central Government to exercise power under Section 8A of theCustoms Tariff Act, Parliament has not either expressly or by necessary

DEF

Aimplication indicated that notification once issued will have force andeffect anterior in time. The provisions of sub-sections (3) and (4) ofSection 7 of the Customs Tariff Act bring to bear legislative oversightand supervision over the power which is entrusted to the CentralGovernment under Section 8A. That however does not lead to theinference that notification under Section 8A has retrospective effect.BPlainly, notification enhancing the rate of duty under Section 8A hasprospective effect.

rule framed by the delegate of the legislature does not haveretrospective effect unless the statutory provision under which it is framedallows retrospectivity either by the use of specific words to that effectCor by necessary implication. In Hukum Chand vs. Union of India[32], athree judge Bench of this Court held that:

“8…The extent and amplitude of the rule-making power woulddepend upon and be governed by the language of the section. If aparticular rule were not to fall within the ambit and purview of theDsection, the Central Government in such an event would have nopower to make that rule. Likewise, if there was nothing in thelanguage of Section 40 to empower the Central Government eitherexpressly or by necessary implication, to make rule retroactively,the Central Government would be acting in excess of its power ifEit gave retrospective effect to any rule. The underlying principleis that unlike Sovereign Legislature which has power toenact laws with retrospective operation, authority vestedwith the power of making subordinate legislation has to actwithin the limits of its power and cannot transgress thesame. The initial difference between subordinate legislationFand the statute laws lies in the fact that subordinate law-making body is bound by the terms of its delegated orderived authority and that Court of law, as general rule,will not give effect to the rules, thus made, unless satisfiedthat all the conditions precedent to the validity of the rulesGhave been fulfilled.”

(emphasis supplied)

65. The distinction between the plenary power which is entrustedto Parliament and the state legislatures to enact legislation with both

H32 (1972) 2 SCC 601

prospective and retrospective effect, and the power entrusted to adelegate of the legislature to frame subordinate legislation has beenmaintained in consistent line of precedent of this Court. In RegionalTransport Officer, Chittoor vs. Associated Transport Madras (P)[33],Justice V.R. Krishna Iyer speaking for two judge Bench of this Courtwith his characteristic eloquence observed:

“4. The legislature has no doubt plenary power in the matter ofenactment of statutes and can itself make retrospective lawssubject, of course, to the constitutional limitations. But it is tritelaw that delegate cannot exercise the same power unless thereis special conferment thereof to be spelled out from the expresswords of the delegation or by compelling implication. In the presentcase the power under Section 4(1) does not indicate eitheralternative “

The Court held that the fact that the rules had been framed inpursuance of resolution passed by the legislature or that they have tobe placed on the table of the legislative body would not lead to aninference that the legislature had authorized the framing of subordinatelegislation with retrospective effect:

“4…The mere fact that the rules framed had to be placed on thetable of the legislature was not enough, in the absence of widerpower in the section, to enable the State Government to makeretrospective rules. The whole purpose of laying on the table ofthe legislature the rules framed by the State Government is differentand the effect of any one of the three alternative modes of soplacing the rules has been explained by this Court in Hukam Chandv. Union of India [(1972) 2 SCC 601, 606 : (1973) 1 SCR 896,902].”

This precisely is the principle which applies in construing whetherthe power which is conferred by Section 8A of the Customs Tariff Actis retrospective. The provisions of sub-sections (3) and (4) of Section 7,which are made applicable by sub-section (2) of Section 8A, are toensure Parliamentary oversight. But that does not enable the CentralGovernment to exercise the power under section 8A with retrospectiveeffect.

In Federation of Indian Minerals Industries vs. Union ofIndia[34], three judge Bench of this Court formulated the principles onthe subject. Justice Madan Lokur observed that the power to framesubordinate legislation is not retrospective unless it is authorized expresslyor by necessary implication by the parent statute. The Court observed:

B“26…The relevant principles are:

(i) The Central Government or the State Government (or anyother authority) cannot make subordinate legislation havingretrospective effect unless the parent statute, expressly or bynecessary implication, authorises it to do so. [Hukam Chand v.CUnion of India [Hukam Chand v. Union of India, (1972) 2 SCC601] and Mahabir Vegetable Oils (P) Ltd. v. State of Haryana[Mahabir Vegetable Oils (P) Ltd. v. State of Haryana, (2006) 3SCC 620] ].

(ii) Delegated legislation is ordinarily prospective in nature and aDright or liability created for the first time cannot be givenretrospective effect. (Panchi Devi v. State of Rajasthan [PanchiDevi v. State of Rajasthan, (2009) 2 SCC 589 : (2009) 1 SCC(L&S) 408] )

(iii) As regards subordinate legislation concerning fiscal statute,Eit would not be proper to hold that in the absence of an expressprovision delegated authority can impose tax or fee. Thereis no scope or any room for intendment in respect of compulsoryexaction from citizen. [Ahmedabad Urban Dev. Authority v.Sharadkumar Jayantikumar Pasawalla [Ahmedabad Urban Dev.Authority v. Sharadkumar Jayantikumar Pasawalla, (1992) 3 SCCF285] and State of Rajasthan v. Basant Agrotech (India) Ltd. [Stateof Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 SCC 1]”

The judgment of Justice Dipak Misra (as he then was) speakingfor two judge Bench decision in State of Rajasthan vs. BasantAgrotech (India) Ltd[35]adopts the same position.GN Summation

66. The imposition of tax encompasses three stages. The locusclassicus on the subject is embodied in the dictum of Lord Dunedin in

34 (2017) 16 SCC 186H35 (2013) 15 SCC 1

Whitney vs. Commissioners of Inland Revenue[36]which has beenconsistently applied in the decisions of this court. There is, first, thedeclaration of liability which determines “what persons in respect ofwhat property are liable”. The second is the stage of assessment.Liability, it is well settled, does not depend on assessment since ex-hypothesi, that has already been fixed. Assessment particularizes theexact sum which person is liable to pay. Third (and the last) are themethods of recovery if person who is taxed does not voluntarily pay.(See in this context the decisions of the Federal Court in Chatturam v.CIT, Bihar[37]and of this Court in V Fernandez vs. State of Kerala[38]and Deputy CTO vs. Sha Sukraj Peerajee[39].67. In the present case the twin conditions of Section 15 stooddetermined prior to the issuance of Notification 5/2019 on 16 February2019 at 20:46:58 hours. The rate of duty was determined by thepresentation of the bills of entry for home consumption in the electronicform under Section 46. Self-assessment was on the basis of rate of dutywhich was in force on the date and at the time of presentation of the billsof entry for home consumption. This could not have been altered in thepurported exercise of the power of re-assessment under Section 17 orat the time of the clearance of the goods for home consumption underSection 47. The rate of duty which was applicable was crystallized atthe time and on the date of the presentation of the bills of entry in termsof the provisions of Section 15 read with Regulation 4(2) of theRegulations of 2018. The power of re- assessment under Section 17(4)could not have been exercised since this is not case where there wasan incorrect self-assessment of duty. The duty was correctly assessedat the time of self-assessment in terms of the duty which was in forceon that date and at the time. The subsequent publication of the notificationbearing 5/2019 did not furnish valid basis for re-assessment.

68. For the above reasons, we have come to the conclusion thatthere is no merit in the appeals. The appeals shall stand dismissed. Thereshall be no order as to costs.

69. Pending application(s), if any, stands disposed of.

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

AK. M. JOSEPH, J.

1. Does notification under Section 8A of the Customs TariffAct, 1975 increasing the import duty published late in the evening of 16[th]Feb 2019, date back to the midnight of the previous day? Does dayinclude its fractions? While I agree with my esteemed and learned brotherBin his erudite judgment that the appeals be dismissed, having regard tothe questions involved, I have written the following separate opinion:

2. Following the terror attack at Pulwama on 14.02.2019, theGovernment of India published Notification on 16.02.2019 (hereinafterreferred to as ‘the Notification’) purporting to be in exercise of powersCunder Section 8A(1) of the Customs Tariff Act, 1975 (hereinafter referredto as ‘the Tariff Act’, for short). By the same, the First Schedule to theTariff 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 relatingDthereto, the following tariff item and entries shall be inserted,namely:-

3. It came to be published in the Gazette at 20:46:58 hrs. on16.2.2019.F

4. On the same day, i.e., on 16.02.2019, the respondents in theAppeals, who were the Writ Petitioners before the High Court, filedBills of Entry under the Customs Act, 1962 in respect of goods importedfrom Pakistan. In fact, there was an agreement between India andPakistan, both being SAARC Countries, under which, duty was to beGlevied on the imports from Pakistan at concessional rates, in those caseswhere imports were exigible to any duty at all. The goods which weresubject matter of import, had also arrived in the Customs Station and asnoticed, during the course of the working hours on 16.02.2019 and wellbefore the time of the Notification hereinbefore adverted to, the Bills ofEntry came to be presented. The duty came to be self- assessed by theH

respondents. It is, thereafter, that taking inspiration from the hefty increasein duty effected under the Notification the Writ Petitioners came to befaced with reassessment proceedings. It is accordingly that theyapproached the High Court and filed Writ Petitions wherein the prayermay be noticed in Writ Petition No. 18460 of 2019 as follows:

“a)Writ in the nature of certiorari/mandamus or any otherBappropriate writ for quashing of the assessment order passedin the bill of entry no. 2083178 dated 16.02.2019 (Annexure-P5) being illegal arbitrary, against the principles of naturaljustice and in violation to the provisions of article 14 & 19 ofthe Constitution of India and against the provisions of SectionC128 & 129 of the Customs Act, 1962;

b)Writ in the nature of certiorari/mandamus quashing thenotification no. 05/2019-cus dated 16.02.2019 (Annexure-P7) being prospective and in contravention to the Notificationno. 50/2017-cus. dated 30.06.2017 granting benefit of customsDduty over and above NIL% as well as section 4 & 11 of theCustoms Tariff act, 1975,

c)Writ in the nature of certiorari/ mandamus directing theRespondent No.3 to issue detention memo in terms ofRegulation 6(1)(1) of the Customs Act, 1962 and furtherdirecting the Respondent No. 4 to release the goods withoutEdemanding any ground rent.

d)Writ in the nature of certiorari/ mandamus restraining therespondent 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 CustomsAct read with the Tariff Act, the rate of duty is to be determined withreference to two definite indicia, viz., the date of presentation of theBills of Entry and the movement of goods across the border and availabilityof the same within the Customs Station. Present these two aspects, thelaw enables the importer to demand that payment of the duty be withreference to the date of presentation of the Bills of Entry. The HighCourt did not consider the challenge to the Notification on the basis ofthe stand taken by the respondents and confined its reasoning to theaforesaid aspect which I have indicated. The Court took the view that

Athe Notification which came to be published late in the evening on16.02.2019 could not alter the destiny of the Writ Petitioners cases asregards the rate of duty.

7. We have heard Shri K.M. Nataraj, learned Additional SolicitorGeneral, appearing on behalf of the appellants, Shri P.S. Narsimha, learnedBSenior Counsel, appearing on behalf of the Writ Petitioners.

CONTENTIONS OF THE APPELLANTS

8. Shri K.M. Nataraj, learned Additional Solicitor General wouldcontend that the Notification issued under Section 8A of the Tariff Actfollowing the extraordinary circumstances surrounding the PulwamaCterror attack, the rate of duty came to be increased by Notification dated16.02.2019. The Notification would have effect in respect of all the Billsof Entry which came to be filed/presented on that day. To buttress hissubmissions, he also sought to draw support from Section 5(3) of theGeneral Clauses Act, 1897. He would point out that the NotificationDwould, therefore, have effect from the expiry of the previous day. Thatis, it is his contention that though it is issued late in the evening on16.02.2019, since the previous day, viz., 15.02.2019 expired at midnight,the Notification must be treated as born and alive from the first tick oftime past the midnight of 15.02.2019. He also drew our attention to theScheme of the Customs Act, 1962 otherwise. With the assistance ofESections 12, 15, 46 and 47, he sought to contend that the High Court fellinto error in not recognizing that the preferring of the Bills of the Entryby the respondents, could not detract from the applicability of theincreased rate of duty under the Notification.9. The principal argument of the Union of India is that these casesFmust be decided based on the provision of Section 15 of the CustomsAct. Expatiating the argument of the Union of India Shri K.M. Nataraj,learned counsel for the Union of India- appellant would contend thatthere 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 wouldGthen be inevitable that the notification in question which no doubt waspublished late in the evening on 16.02.2019, fixed the increased rate ofduty on all goods imported from Pakistan and it was undoubtedly to haveeffect from that day onwards. In other words, since Section 15 of theAct contemplates that the rate of duty to be the rate in force during theday, and as the Notification was published on 16.02.2019, the dayH16.02.2019 was not to be excluded. It was, in other words, to haveoperation throughout the day, 16.02.2019. It is contended that there cannotbe two rates of duty which are at loggerheads with each other on asingle day. The time of the day at which the notification was actuallypublished, would pale into insignificance in answering the question as towhether the said notification which is of the kind involved in this casewas to hold sway during the course of the whole day. He urges us tonotice that Section 15 of the Customs Act does not allude to the time ofthe day but only refers to the day. He would further contend that byvirtue of the notification, the rate in force within the meaning of Section15 from the mid night of 15.02.2019 was the rate fixed under thenotification in respect of the goods governed by the same. Any otherinterpretation would involve rewriting of Section 15 and the amendmentof the provision which is plainly impermissible. He also no doubt pointsthat the authorities have rightfully embarked upon reassessment underthe Act upon noticing that the goods were assessed with duty at ratewhich was not in force, namely, the rates which stood supplanted by thenotification issued under Section 8A on 16.02.2019. In this regard hedrew inspiration from the provisions of Section 17(4) of the Act. Inparticular, he pointed out that the expression “otherwise” is capable ofencompassing the situation existing in the facts of these cases. He wouldalso point out that the Court may notice that an order has not beenpassed under Section 47 of the Act permitting clearance of the goodsfor home consumption. As soon as the factum of the notification havingbearing came to light, proceedings for re-assessment were resorted toand no case was made out for the High Court to interfere with theaction of the authorities in purporting to apply the correct rate of dutywithin the meaning of Section 15 of the Act.

10. Per contra, Shri P.S. Narsimha, learned Senior Counsel forthe respondent-Writ Petitioners, countered the appellants submissionsby pointing out as follows:

Under Section 12 of the Customs Act, imports attract customsduty as is fixed under the Tariff Act. Section 15 of the CustomsAct, however, determines the date with reference to which therate of duty as provided in the Tariff Act is to apply. Still furtherand crucially, this exercise is to be accomplished with referenceto the date of presentation of the Bills of Entry as provided inSection 46 of the Customs Act. He would, in fact, submit thatunder the Customs Act, perusal of Sections 15 and 16, wouldshow that there are four different situations contemplated. Under

ABC

Section 15, which deals with rate of duty payable on imports, in acase where the Bills of Entry is presented for home consumptionunder Section 46, the rate of duty is to apply with reference to bedate of presentation of the Bills of Entry. In the case where thegoods are cleared for being warehoused under Section 68, againthe duty is to be paid at the rate with reference to the presentationof the Bills of Entry for home consumption under Section 68. Thetwo other circumstances pertain to exports. In the case of goodsentered for export from India, the rate of duty is fixed withreference to the date on which the proper officer makes an orderpermitting clearance and loading of goods for exportation underSection 51. In any other case, which is the fourth Category, theduty is fixed with reference to the date of payment of duty. Hewould draw our attention to the Electronic Filing of Bills of EntryRegulations, 2018. In particular, he would draw our attention toRegulation 4 of the said Regulations. He would point out thatRegulation 4, of the said Regulations, makes it clear that once theBills of Entry is filed electronically and the event takes place,which under law determines the point of time with reference towhich the rate of duty is to be imposed, the position is unalterable.He would submit that neither is the rate of duty dependent on thedate of payment of duty nor is it based on Entry Inward. An orderis contemplated under Section 47 of the Customs Act for clearingthe goods, which contemplates payment of duty as conditionprecedent for such an order. This is irrelevant. He would submitthat in the present-day world of international trade, innumerabletransactions take place at different points of time during the courseof the day. The Law Giver has not contemplated the reopening ofa transaction, which in the eye of law, is closed chapter. Hewould point out that the court must bear in mind that it is dealingwith law which visits person with tax. The point of time istransparent and declared through the Scheme of the CustomsAct read with the Tariff Act. It would be wholly impermissible toinflict imports which have been visited with the duty in accordancewith the law, with the rates of duty, which was not prevalent atthe relevant time. The Notification could have only prospectiveoperation. In fact, Shri Kapoor, the learned Counsel, who appearedin the High Court for the Writ Petitioners, pointed out that afterthe Notification was issued late in the evening, the system did not

accept further electronic declaration of Bills of Entry as it wascontemplated that such Bills of Entry would attract the higherduty.

11. Mr. P.S. Narsimha, learned Senior Counsel, points out thatCustoms Act contemplates self-assessment. He drew our attention toSection 17 in this regard. It is the further case of the writ petitioners thatbased on the self-assessment, the system generated details whichapproved of the self-assessment. After the matter stood concluded interms of the Act, the transaction could not be revisited on the strength ofthe Notification issued under Section 8A, runs the argument. It is pointedout that the Notification, issued under Section 8A, may be akin to delegatedlegislation. 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 ofthe Notification to issue the Notification with retrospective effect. Inanswer to query by the Court as to what would have been the effectof the notification which was issued at 10.00a.m. at 16.02.2019, insteadof 20:46:58 hrs., at which time, it was in fact issued and if the Bill ofEntry is presented after 10.00 a.m., Mr. P.S. Narsimha pointed out thatit would be the Notification which was issued on 10.00 a.m., whichwould be the Notification in force, and therefore, the increased dutymay have been payable. Mr. P.S. Narsimha has also, no doubt, contentionthat the Notification issued under Section 8A is illegal for the reason thatwhat is contemplated under Section 8A is the increase of the rate ofduty in respect of items which are already included in the first scheduleof the Tariff Act whereas perusal of the Notification would show thata new entry has been made and the rate of duty has been providedtherein, viz., the rate of duty of all goods emanating from Islamic Republicof Pakistan was increased to 200 per cent. But this line of argumentwas not pursued.

12. Both sides referred us exhaustively to case law.

ANALYSIS

13. The Customs Act is consolidating Act. It is intended, interalia, 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 isa law which provides revenue to the State. It is also an important tool inthe hands of the nation to arrange its economic affairs to make it bestsuited to the welfare of the people otherwise. Indisputably, the charging

ASection is Section 12. The taxable event is import into or export of goodsfrom India. Ordinarily, the Tariff Act provides the rates at which duty isimposed on imports and exports. There is no dispute that India andPakistan being S.A.A.R.C. Countries they were parties to an agreementunder which the trade between the countries was subjected only to dutyon concessional rates. It is while so, following the unfortunate incidentBof Pulwama that the Government of India in exercise of its powersunder Section 8A of the Tariff Act decided to increase the rate of importduty on all goods in the manner done. The Notification was issued on16.02.2019. It was published at about 20:46:58 hrs. In the meantime,during the course of the day, the writ petitioners before us who importedCgoods had filed Bills of Entry electronically. The goods were present inthe Customs Station. To be more correct, the Bills were presented andself-assessment was undertaken. It is thereafter that late in the eveningas bolt from the blue, as it were, the notification came to be issuedunder Section 8A of the Tariff Act. The questions which arise for theconsideration of this Court is articulated as follows:D

1.What is the nature of the Notification? Is it species ofsubordinate legislation?

2.If it is subordinate legislation, when did it commence? Whatis the scheme of the Customs Act as regards the rate ofEduty on imports and the power of assessment? Was theNotification in force on 16.02.2019 so that it would cover allthe transactions countenanced by the Bills of Entry whichwere duly presented during the office hours on 16.02.2019?What constitutes day under Section 15 of the CustomsAct?F

3.Whether the Notification is covered by Section 5(3) of theGeneral Clauses Act?

4.Whether the appellants were justified in resorting to re-assessment in these cases?

GTHE TARIFF ACT AND WHETHER THENOTIFICATION IS 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 theentries in the First and Second Schedule. Section 2 of the Tariff Act,Hreads as follows:

“2. Duties specified in the Schedules to be levied. - The rates atwhich 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 providedby Parliament. It may require an amendment to the Tariff Act to increaseor decrease the rate of duty under Section 2. Section 11A contemplatespower with the Central Government to amend the First Schedule. Itcannot be, in the region of doubt, that the exercise of power under Section11A would amount to exercise of delegated legislation. Section 11A(2)stipulates the procedure to be adopted after the Notification is issued. Ithas to be placed before each House of Parliament and the furtherprocedures are as provided therein, which includes the power to modifythe Notification. The proviso, however, makes it clear that the exerciseof power under Section 11A, to amend the First Schedule, will not involveor amount to an increase in the rates which are specified in the FirstSchedule in regard to duties of customs leviable under the Customs Act.In other words, barring the rate of customs duty, the contents of the FirstSchedule can be amended by the Central Government under Section11A. Resultantly, Section 11A does not confer upon the CentralGovernment, the power to increase the rate of duty under the CustomsAct. The rate of duty, in other words, ordinarily falls within the provinceof Parliament, and it is Parliament alone, which can increase or decreasethe rate of duty. However, an exception has been carved out underSection 8A to change the rate of duty under the Schedule to the TariffAct. It is an emergency power vested with the Central Government.The emergency power vested with the Central Government is to changethe import duty and the change is limited to an increase in the rate ofimport duty. The condition requisite is, no doubt, that circumstances existwhich render it necessary to take immediate action for providing for anincrease in the import duty. Section 8A, in fact, does not contemplate thepower to amend the First Schedule. The power under Section 8A isconfined to any article which is already included in the First Schedule.Undoubtedly, it is the same Authority, viz., the Central Government, whichstands clothed with the power to amend the First Schedule under Section11A. The words “circumstances” exists which render it necessary totake immediate action in Section 8A makes it clear that the power toincrease the rate of import duty is ordinarily power to be exercised bythe Parliament by process of amending the First Schedule to the TariffAct. It is only in emergent circumstances where the delegate of theLegislature, viz. the Central Government, considers it necessary to take

Aimmediate action that is the process of amending the Act or rather theSchedule to the Act by the Parliament, would take time, the same issought to be obviated by taking action under Section 8A. Undoubtedly,the provisions of Sections 7(3) and 7(4) will apply in making of theNotification.

B16. On perusal of the provisions, as noted, it is clear that aNotification issued under Section 8A, increasing the import duty, is aspecies of delegated legislation. It must be remembered that Article 265of the Constitution of India declares that no tax shall be levied except bythe authority of Law. An increase in the rate of duty cannot obviously beaffected by an Executive Order. That is not to say that when the ExecutiveCis 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 nohesitation in holding that it is law within the meaning of Article 13 of theConstitution of India and it is species of delegated legislation. [See inthis regard AIR 1961 SC 21 para 11]DTHE SCHEME OF THE CUSTOMS ACT QUA RATE OFDUTY 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 thisAct, or any other law for the time being in force, duties of customsEshall be levied at such rates as may be specified under the CustomsTariff Act, 1975 (51 of 1975), or any other law for the time beingin force, on goods imported into, or exported from, India.

(2) The provisions of sub-section (1) shall apply in respect of allgoods belonging to Government as they apply in respect of goodsFnot 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 ofGimported goods.—(1) The rate of duty and tariff valuation, if any,applicable to any imported goods, shall be the rate and valuationin force,—

(a) 4 in the case of goods entered for home consumption undersection 46, on the date on which bill of entry in respect of suchHgoods is presented under that section;

(b) in the case of goods cleared from warehouse under section68, on the date on which bill of entry for home consumption inrespect 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 bill of entry has been presented before the dateof entry inwards of the vessel or the arrival of the aircraft or thevehicle by which the goods are imported, the bill of entry shall bedeemed to have been presented on the date of such entry inwardsor the arrival, as the case may be.

(2) The provisions of this section shall not apply to baggage andgoods imported by post.”

19. In the matter of imports, the rate of duty, which is the solearea of controversy, is to be determined on the basis of the rate of dutywhich is in force on the day of the presentation of the Bill of Entry. It willbe further noticed that an importer may, when the goods are physicallypresent within the Customs Station in question, file the Bill of Entry forhome consumption. Section 46(1) also contemplates the presentation ofthe Bill of Entry for the goods being warehoused. This ordinarily wouldoccur when the importer may have difficulty in paying the duty on thegoods. He may also warehouse the goods when he has not yet found abuyer 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 countryby way of transshipment or goods intended for transit, are not coveredby Section 46 (1). The Bill of Entry under sub-Section (1) is to bepresented before the expiry of the day following the day (excludingholidays) on which the aircraft, vessel or vehicle carrying the goodsarrives at Customs Station, at which the goods are to be cleared, eitherfor home consumption or warehousing [See Section 46(3)]. The SecondProviso to Section 46(3) provides that if the Bill of Entry is not presentedwithin the time specified and there are no sufficient reasons for suchdelay, the importer is to pay charges for late presentation. The importeris also to make declaration regarding the truth of the contents of theBill of Entry, and in support of the same, he is to produce the invoice andother documents, as may be prescribed. [See Section 46 (4)]

20. The next procedure contemplated under the Customs Act inregard to an importer entering any imported goods under Section 46 forhome consumption is for the importer to carry out self-assessment exceptin situation covered by Section 85 [See Section 17(1)]. The proper

AOfficer is to verify the entries in the Bill of Entry entered under Section46, inter alia, and the self-assessment of the goods carried out by theimporter. He is clothed with the power to examine or test any importedgoods, inter alia, for the purpose of such verification. The importer is tofurnish any document for verification, as may be necessary towards thecarrying out of the verification [See Section 17(3)]. It is thereafter thatBSection 17(4) empowers the Officer who carries out the verification tore-assess the duty leviable on such goods. The perusal of Section 17(4)would 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 theCexpression “otherwise” after the words “verification, examination ortesting of the goods”. It is argued by the learned Additional SolicitorGeneral that the word “otherwise” is attracted in the facts of this caseas it is found that the issuance of the Notification on 16.02.2019 albeit inthe late evening determined the rate of duty in respect of all Bills ofEntry which may have been presented during the course of the day andDre-assessment was legally permissible as it fell within the wide embraceof the word “otherwise”. This question will be answered after examining,considering and answering the question as to when the Notificationcommenced. It may also be noticed that Section 18(1)(a), which providesthat notwithstanding anything contained in the Act but without prejudiceEto Section 46, that the Officer may carry out provisional assessment.Under Section 18(1)(a) such provisional assessment is permitted whenthe importer, inter alia, is unable to make the self-assessment underSection 17(1), and what is more, makes request in writing to the properOfficer for provisional assessment.F21. There are three other circumstances enumerated in clause(b), (c) and (d) of Section 18(1) which entitle the Officer to pass anOrder of provisional assessment. In such case, it is open to the Officerto carry out the final assessment. So also, it is open to the Officer tocarry out re-assessment.G22. What is the time at which the importer who presents Bill ofEntry under Section 46 for home consumption is to effect payment ofthe import duty, when he carries out self-assessment? This question isanswered in Section 47(2)(a) which provides that the importer is to paythe import duty on the very day of presentation of the Bill of Entry whenthe importer carries out self-assessment as is contemplated under SectionH17(1) of the Act.

23. Section 47(1) contemplates that where the Officer is satisfiedabout the goods entered for home consumption, being not prohibited goods,and the importer has paid the import duty, if any, assessed thereon, andother charges, under the Act, he is to pass an Order permitting clearingof goods for home consumption. It is again to be noted that under Section47(2)(b), the importer is to pay the duty within one day from the date onwhich the Bill of Entry is returned to him when there is assessment, re-assessment or provisional assessment. Section 47(1)(c) also contemplatespermitting the importer to make deferred payment which is permittedunder the Second Proviso to Section 47(1).24. What is the effect of non-payment of the duty within the timespecified in Section 47(2)? The answer to this also is contained in Section47(2) itself as the law mandates that the importer shall pay interest onthe duty not paid or short paid till the date of its payment at the rate asprovided therein. It is to be noticed that Section 47 is related to goodsentered for home consumption. No doubt without payment, an order forclearance of goods would not be passed.

25. Section 28 of the Customs Act provides for recovery of dutiesnot levied, not paid, short levied, short paid or erroneously refunded.Similar provisions are contained in the Central Excise Act as well. It isalso noteworthy that Section 2(25) defines the word “imported goods”as meaning the goods brought into India from the place outside India butit does not include the goods which have been cleared for homeconsumption.

26. perusal of Section 15(1)(a) makes it clear that as far asgoods entered for home consumption under Section 46, the rate of dutyis to be the rate of duty in force on the date on which the Bill of Entry inrespect of such goods is presented under Section 46. It is not the date onwhich the goods are ordered to be cleared under Section 47. In fact, theScheme of the Act, in regard to goods entered for home consumption, isthat the importer is to present the Bill of Entry, as contemplated underSection 46, he is to make self- assessment under Section 17(1), he is tomake the payment of the duty on the day on which he presents the Billof Entry under Section 47(2)(a). Should he fail to make the payment onthe same day in the case of self- assessment, he becomes liable to payinterest 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 forhome consumption in the form and in the manner, which is prescribed.

AThe word “prescribed” has been defined in Section 2(32) to meanprescribed by Regulations made under the Act. Regulations have beenmade in regard to presentation of Bill of Entry. Section 46(1) wouldreveal that the word “electronically” came to be inserted by Act 8 of2011 w.e.f. 08.04.2011. Immediately following the words “electronically,the words “at the customs automated system”, have been inserted byBthe Finance Act, 2018 w.e.f. 01.04.2018. The words “in such form andmanner, as may be prescribed” came to substitute the words “in theprescribed form”, by the Finance Act, 2018. No doubt, the First Provisoto Section 46(1) empowers the Principal Commissioner of Customs orthe Commissioner of Customs to allow the Bill of Entry to be presentedCin any other manner, where it is not feasible to make the entryelectronically.

27. The Regulations holding the field providing for the form andmanner in which the Bill of Entry is to be presented for home consumptionunder Section 46(1) of the Customs Act are called the Bill of EntryD(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 andself-assessment completed when after entry of the electronicEintegrated declaration on the customs automated system or byway of data entry through the service centre, bill of entry numberis generated by the Indian Customs Electronic Data InterchangeSystem for the said declaration and the self- assessed copy of theBill of Entry may be electronically transmitted to the authorisedperson or printed out at the service centre.”F

28. perusal of the aforesaid Regulation makes it clear that thereis not only deemed presentation of the Bill of Entry which the law callsinto existence, as provided therein but also completion of self- assessment.This deemed presentation and completed self-assessment takes placewhen the bill of entry number is generated. Once there is deemedGpresentation of the Bill of Entry, then, under Section 15(1)(a), the rate ofduty, which is in force on such deemed date of presentation, would bethe rate which is applicable. This is, no doubt, subject to the furtherrequirement that the goods are physically present in the Customs Station.This is for the reason that under the First Proviso to Section 46(3), anHimporter can present Bill of Entry in anticipation of the arrival of the

goods provided that the presentation of such Bill of Entry is limited to aperiod not exceeding thirty days prior to the expected arrival. However,in case, where the Bill of Entry is presented under the First Proviso toSection 46(3), the rate of duty will be determined with reference to theact of presentation of the Bill of Entry, but such presentation of the Billof Entry is by deeming fiction made only from the date of the entryinwards 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 importedgoods were very much in the Customs Station and the Bills of Entrywere presented under Section 46(1) on 16.2.2019. It is clear that therate of duty, for the purpose of the cases before the Court, is to bedetermined with reference to the presentation of the Bills of Entry. Thelaw does not take into consideration even the time of payment of theduty which is self-assessed by the importer. This is noted for the reasonthat the importer, who presents Bill of Entry under Section 46 and whocarries out self-assessment, is duty-bound to pay such duty on the verysame date. The consequence of failure is only the liability to pay interestunder Section 47 besides disabling him from clearing the goods. It doesnot 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 goodswhich are imported into India and which have been entered under Billof India for home consumption, the time is now ripe for ascertaining theimpact of the Notification which came to be issued late in the evening on16.02.2019. The nature of the Notification, which is admittedly issuedunder Section 8A of the Tariff Act, has been explained earlier. It is aspecies of delegated legislation. As far as law made by Parliament orthe State Legislatures, which are sovereign bodies in their own right,subject, no doubt, to their position, under the Constitution, as expoundedby this Court, the law comes into force immediately after the assent isgiven by the President or the Governor, respectively. law made byParliament has effect without any further act on the part of the Executive.This is, no doubt, subject to the intention expressed otherwise in the lawso made as to any other date from which it is to have operation. It mayalso be case of conditional legislation where the law is to be broughtinto force by the Executive.

31. No doubt, there is distinction between conditional legislationand delegated legislation (See in this regard, judgment of this court inI.T.C. Bhadrachalam Paperboards and another v. MandalRevenue

[2020] 14 S.C.R.

AOfficer and others1, where the earlier case law has been exhaustivelydealt with).

32. Notification, which is made by the Executive, must indeedbe made known. Ordinarily this is made known by being published in theGazette. In this regard, it is profitable to refer to what this Court laid2Bdown in the decision reported in B.K. Srinivasan v. State of Karnataka:

“15. … It is, therefore, necessary that subordinate legislation, inorder to take effect, must be published or promulgated in somesuitable manner, whether such publication or promulgation isprescribed by the parent statute or not. It will then take effectCfrom the date of such publication or promulgation. Where theparent statute prescribes the mode of publication or promulgationthat mode must be followed. Where the parent statute is silent,but the subordinate legislation itself prescribes the manner ofpublication, such mode of publication may be sufficient, ifreasonable. If the subordinate legislation does not prescribe theDmode of publication or if the subordinate legislation prescribes aplainly unreasonable mode of publication, it will take effect onlywhen it is published through the customarily recognised officialchannel, namely, the Official Gazette or some other reasonablemode of publication. There may be subordinate legislation whichEis concerned with few individuals or is confined to small localareas. In such cases publication or promulgation by other meansmay be sufficient [Narayana Reddy v. State of A.P., (1969) 1Andh WR 77].”

33. This view came to be endorsed in case under the CustomsFAct, which is reported in M/s. Pankaj Jain Agenciesv. Union of Indiaand others3. Therefore, it is only with the publication effected at 20:46:58hrs. on 16.02.2019, the Notification issued under Section 8A, increasingthe rate of import duty, came into force.

34. While on publication required in law, to make Notificationeffective, the decision of this Court, rendered under the Central ExciseGAct in Collector of Central Excise v. New Tobacco Company and others4,is noticed. The question, which was considered, was whether

1 (1996) 6 SCC 6342 (1987) 1 SCC 658.3 (1994) 5 SCC 198H4 (1998)144 CTR(SC) 618

Notification under the Central Excise Act became effective from thedate on which it was printed in the Government Gazette or from the dateit was made available to the public. This Court, elaborately referred tothe judgment of the Madras High Court in Asia Tobacco CompanyLimitedv. Unionof India and others5. Therein, the High Court, interalia, held as follows:

“8. …… “The mere printing of the official Gazette containing therelevant notification and without making the same available forcirculation and putting it on sale to the public will not amount tothe notification within the meaning of r. 8(1) of the Rules. Itwould be mockery of the rule to state that it would suffice thepurpose of the notification if the notification is merely printed inthe Official Gazette, without making the same available forcirculation to the public or putting it on sale to the public ......Neither the date of the notification nor the date of printing, nor thedate of Gazette counts for notification within the meaning of therule, but only the date when the public gets notified in the sense,the concerned Gazette is made available to the public. The dateof release of the publication is the decisive date to make thenotification effective. Printing of the official Gazette and stackingthem without releasing to the public would not amount tonotification at all.....”

35. Thereafter, this Court went on to hold as follows:

“11. We hold that Central Excise Notification can be said tohave been published, except when it is provided otherwise, whenit is so issued as to make it known to the public. It would be aproper publication if it is published in such manner that personscan, if they are so interested, acquaint themselves with its contents.If publication is through Gazette then mere printing of it in theGazette would not be enough. Unless the Gazette containing thenotification is made available to the public, the notification cannotbe said to have been duly published.”

36. It may be noticed that Bench of three learned Judges cameto, however, overrule the Judgment in New Tobacco Company (supra)in the decision reported in Union of India and othersv. Ganesh Das6Bhojraj. Therein Notification was issued under Section 25 of the

5 (1985)155 ITR 568 (Mad)

6 2000 (9) SCC 461

ACustoms Act on 04.02.1987, amending an earlier Notification of the year1976 by which exemption had been granted and limiting the exemptionto the duty in excess of 25 per cent. The Bill of Entry was filed on05.02.1987. This Court took the view that under Section 25 of theCustoms Act, since the Notification dated 04.02.1987 has been publishedin the Gazette, it had come into force and constituted the rates prevalentBon 05.02.1987, when the respondent had filed the Bill of Entry. In fact,the Court noticed the subsequent development in Section 25 of theCustoms Act by which sub-Sections (4) and (5) were added to Section25, which reads as follows:

“25. Power to grant exemption from duty.— \C

xxxxxxxxxxxx

(4) Every notification issued under sub- section (1) or sub-section(2A) shall, —

(a) unless otherwise provided, come into force on the date of itsDissue by the Central Government for publication in the OfficialGazette;

(b) also be published and offered for sale on the date of its issueby the Directorate of Publicity and Public Relations of the Board,New Delhi.E(5) Notwithstanding anything contained in sub-section (4), wherea notification comes into force on date later than the date of itsissue, the same shall be published and offered for sale by the saidDirectorate of Publicity and Public Relations on date on or beforethe date on which the said notification comes into force.”FThe view in New Tobacco Company(supra) was held to be notgood law.

37. It is to be noticed that it is in regard to Notification issuedunder Section 25 of the Customs Act that the principles contained insub-Section (4) and (5) will have effect from the date on which theseGprovisions were brought into force. As far Notification issued underSection 8A, with which this Court is concerned, it is the principle whichhas been laid down in Ganesh Das Bhojraj(supra), which will apply.

38. In other words, as far as the Notification issued under Section8A of the Tariff Act is concerned, the Notification would come intoHforce on the date on 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 waspublished, 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 itspublication, or whether the Notification is to be enforced only afterexcluding 16.02.2019.

39. The question would pointedly arise whether it was to haveeffect for the whole of the day, viz., 16.02.2019, which means, since theday 16.02.2019 was born, immediately after the midnight on 15.02.2019,does day mean the first moment after the midnight? If that were theeffect, what would be its impact on the Bills of Entry which wereelectronically presented under Section 46(1) of the Customs Act readwith Rule 4(2) of the 2018 Regulations, which have already been referredto above. It is here that it becomes necessary to notice the provisions ofSection 9 of the General Clauses Act, 1897.

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 thecommencement of this Act, it shall be sufficient, for the purposeof excluding the first in series of days or any other period oftime, to use the word from, and, for the purpose of including thelast in series of days or any other period of time, to use the wordto.

(2) This section applies also to all Central Acts made after thethird day of January, 1868, and to all Regulations made on or afterthe fourteenth day of January, 1887.”

41. In this case, there is no dispute that Notification under Section8A was published in the Gazette. It was published at 20:46:58 hrs. on16.02.2019. It is to be noticed that we are not dealing with case, wherea period of time, limited by two different termini, is present. Statutemay fix terminus aquo. The Statute may be made to last withoutindicating 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 series of days or any other period of time,it suffices to use the word “from”. It also provides, likewise, for thedevise of using the word “to”, for the purpose of including the last in theseries of days or other period of time. It is clear from Section 9 that it

Acontemplates period, or series of days which is marked by bothterminus aquo and terminus ad quem. Section 9 is expressly intendedto apply to Central Act or Regulation.

43. In this case, we are concerned with the Notification issuedunder the Statute, and which is piece of delegated legislation, underBwhich, the rate of import duty has been increased. The increase in therate of duty is not for any period. In other words, it is not case wherethe terminus ad quem or period of time, is fixed for the operation ofthe increased import duty of goods imported from Pakistan. In otherwords, the increased rate of import duty under the Notification is to lastindefinitely. The word “indefinite” is intended to mean that it is to bearClife till it is increased, reduced or completely done away with, in exerciseof 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 theTariff Act).

DAY; PERIOD OF TIME; FRACTION OF TIMED44. It now becomes necessary to refer to principles enunciatedby Courts in diverse situations under different branches of law.

45. I would begin by referring to an off-quoted Judgment renderedby the Master of the Rolls, Sir William Grant in the decision reported inLesterv. Garland7. In the said case, there was bequest of residualEinterest in favour of ‘A’ if she gave security not to marry ‘B’, inter alia,within six calendar months, after the death of the Testator.

There was proviso to go over if ‘A’ refused to give such security.The Testator died on the 12[th] of January. Security was given by ‘A’ onthe 12[th] of July. The Testator died on 12[th] of January between 8 and 9 inFthe evening. Security was given by ‘A’ about 9 in the evening on 12[th] ofJuly. The question, which was considered was whether the date of thedeath of the Testator was to be included within the six months, withinwhich, ‘A’ had to give the security, or to be excluded. If the day of thedeath of the Testator was included, the security given by ‘A’ would beGbeyond the period of six months and she would stand divested of thebequest, 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 herwould be within the period of six months. It would be profitable to noticethe 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 easyto 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 beincluded. Our law rejects fractions of day more generally thanthe civil law does.(See the note, 14 Ves. 554, where it is admittedin bankrupty.) The effect is to render the day sort of indivisiblepoint; so that any act, done in the compass of it, is no more referribleto any one, than to any other, portion of it; but the act and the dayare co-extensive; and therefore the act cannot properly be said tobe passed, until the day is passed. This reasoning was adopted byLord Rosslyn and Lord Thurlow in the case before mentioned ofMercer v. Ogilvie. The ground, on which the judgment of theCourt of Session was affirmed by the House of Lords, is correctlystated in the fourth volume of the Dictionary of the Decisions ofthe Court of Session. In the present case the technical rule forbidsus to consider the hour of the testator’s death at the time of hisdeath; for that would be making fraction of day. The day ofthe death must therefore be the time of the death; and that timemust be past, before the six months can begin to run. The rule,contended for on behalf of the Plaintiffs, has the effect of throwingback the event into day, upon which it did not happen; consideringthe 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 ofthe days subsequent to his death. There seems to be no alternativebut either to take, the actual instant, or the entire day, as the timeof his death; and not to begin the computation from the precedingday.

But it is not necessary to lay down any general rule. Whicheverway it should be laid down, cases would occur, the reason ofwhich would require exceptions to be made. Here the reason ofthe thing requires the exclusion of the day from theperiod of sixmonths, given to Mrs. Pointer to deliberate upon the choice shewould make; and upon the whole my opinion is, that she has enteredinto the security before the expiration of the six months; in sufficienttime therefore tofulfil the condition, on which her children wereto take.”

(Emphasis supplied)

A46. In Re. Railways Sleepers Supply Co.[8], an Extraordinary GeneralMeeting of the company passed Special Resolution on 25.02.1885, forthe reduction of the capital of the company. On 11.03.1885, the Resolutionpassed on the 25.02.1885, was confirmed. On petition filed, seekingsanction of the Court for the proposed reduction of capital, the questionarose whether there was compliance with Section 51 of the CompaniesBAct, 1862. The said provision, inter alia, required confirmation of theResolution at subsequent General Body Meeting which was held at aninterval of not less that fourteen days and not more than one month fromthe date of the meeting at which the Resolution was first passed.

47. Chitty J., in his opinion, referred to Lesterv. Garland(supra)Cand held, inter alia, as follows:

“… Lord Mansfield in his well-known judgment in Pugh v. Dukeof Leeds says, “Date does not mean the hour or the minute, butthe day of delivery, and in law there is no fraction of day.” Theday of the death of the testator, which is equivalent here to theDday of the first meeting, was not reckoned by Sir William Grantin his well-known decision in Lester v. Garland, where bond hadto be given within six months after the testator’s decease. The51st section states that the subsequent or second meeting is to beheld “at an interval of not less than fourteen days or more than aEmonth.” The word “at” means after the interval, or at some timeafter the interval, prescribed by the other part of the section. Theword “at” refers grammatically rather to point of time than aperiod. ……”“… The interval “of not less than fourteen days” was allowed toFgive reasonable time for deliberation, and to prevent undue hasteor surprise, and to afford to the shareholders who might be presentat the first meeting, and also to those who might not think fit ormight not be able to attend it, time for reflection and consideration,and to make arrangements to enable them to attend the second….”

G“…. An interval of not less than fourteen days” is equivalent tosaying that fourteen days must intervene or elapse between thetwo dates….”

“… That means fourteen clear days; and as Littledale , J., said inReg. v. Justices of Shropshire, I do not see any distinction between

H8 (1885) 29 Chdf.d. 204

“fourteen days” and “at least fourteen days.” I must cometherefore to the conclusion that the resolution is bad. Probably noquestion has more exercised the minds of Judges in former timesthan the question as to the proper mode of computing time. LordMansfield’s judgment in Pugh v. Duke of Leeds and LordWensleydale’s judgment in the case of Chambers v. Smith, towhich I have already referred, are excellent illustrations of whatI have said. ….”

48. In 1895, case, viz., In Re. North9 arose under the BankruptcyAct, 1890. The question was whether an act of bankruptcy had beencommitted by reason of the fact that on an action taken by an executioncreditor, and after the seizure of goods of the debtor and subsequentprivate sale, as permitted by the Court, the Sheriff had held the goodsfor period of twenty-one days. Lord Esher M.R., after referring toLesterv. Garland(supra), holds as follows:

“ …., after learned examination of the whole subject, laid downwhat I conceive to be the wholesome view that no general ruleexists. ….”

“… The statute which we have to construe for the purpose ofdeciding how the period of time mentioned in it is to be computedis Bankruptcy Act, and enacts new act of bankruptcy, thecommission of which is to be determined by computation oftime.

“… If we construe s. 1 of the Act of 1890 according to the ordinaryEnglish meaning of the words, it enacts that certain consequencesare to happen if the sheriff holds for twenty-one days goods seizedby him under an execution: an act of bankruptcy is committed ifhe holds them for that time. The ordinary meaning of the words isthat he must hold them for twenty-one days; but we are told thatunder technical rule of construction the section is satisfied if heholds them for twenty days and part of day. Which is right?...”

“… Here the result may be to make man bankrupt, which isnot benefit to him, nor necessarily to the whole of his creditors.The bankruptcy law is law of public social policy, and affects in

ABC

Aa very detrimental manner the status of those who are broughtunder its operation; in old times, indeed, to make man bankruptwas to make him criminal; …”

“… Bankruptcy is the creature of statute, and under long seriesof bankruptcy statutes the same practice as to computing timeBhas been followed, though for different purposes or results; thepractice is perfectly well-known one, the rule in bankruptcybeing to exclude the first day or part of day, and to begin thecomputation of time on the first whole day. …”

“… Again, there is the rule of construction that if statute, whichCso affects man’s status as to be in effect penal enactment, iscapable of two constructions, that one should be adopted which ismost favourable to the person affected. Applying this rule, themode of calculating the twenty-one days ought to be in favour ofthe debtor doing somethingwhich would prevent his becoming abankrupt at all, and we ought to construe this section as meaningDthat the first day, or part of day, is to be excluded from thecomputation, which should begin on the day after the date of theseizure.

(Emphasis supplied)

49. A.L. Smith L.J. agreed with Lord Esher M.R. and held, interalia, as follows:

“… But it has been shewn from subsequent cases that there is nosuch universal rule, and that in the reckoning of time each caseFmust depend on its own circumstances and subject-matter, andfor this I need only refer to the judgment of Sir William Grant inLester v. Garland , to that of Kelly C.B. in Isaacs v. RoyalInsurance Co., and of Chitty J. in In re Railway Sleepers SupplyCo. To say, therefore, that rule of law compels us to say that tohold goods for twenty days and fraction of day is the same asGto hold them for twenty-one days is to say that which is not fact.

50. Rigby L.J. also concurred with Lord Esher M.R. and, in hisjudgment, held as follows, inter alia:

“… It was contended before us, and it seems at one time to havebeen thought to be law, that where fact or event was mentionedfrom which given period of time was to be reckoned, the Courtwas bound to reckon the portion of the day on which the act wasdone as though it were whole day, and to reckon it as the firstday of the period. That doctrine underwent thorough examinationin Lester v. Garland, at the hands of Sir W. Grant, who consideredthe cases in which the first day had been included or excluded,and came to the conclusion (which I think was inevitable) thatthere was no general rule on the subject. …”

“… His classification of the cases shews that where the calculationis in favour of person, the construction should be adopted whichis more favourable to him. In the case of sheriff, for instance, itis more in his favour to include the day on which the act is donethan to exclude it, and on that ground it is included; but where, totake another example, something has to be done which is necessaryto complete title, the first day is excluded, otherwise there wouldbe cutting down of the time allowed for doing the act. In myopinion, although Sir W. Grant did not put the proposition in somany words, his judgment leads us to the conclusion that thequestion of whether the day on which the act is done is to beincluded or excluded must depend on whether it is to the benefitor disadvantage of the person primarily interested.But whetheror no the proposition is to be put so high, we have here statutewhich does not say twenty- one days from taking possession; andit is only to cases where terminus is mentioned that any suchgeneral rule was ever held to apply. The present is an fortioricase; no terminus is mentioned, and the only question is whetherthe sheriff held for twenty-one days. …”

(Emphasis supplied)

51. On 05.05.1922, by Notification in the Fort St. George GazetteExtraordinary, published on Friday, the Table of Fees under Appendix-II, the old Rules on the Original Side of the Madras High Court, wasamended and instead of 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 thevalue of the subject matter does not exceed Rs.10,000/-, inter alia. TheNotification further recited that the amendments were to come into forcefrom the date of publication in the Fort St. George Gazette. The Gazette

AExtraordinary 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 whetherthe amended Scale of Fees was to apply from the 5[th] day of May orafter excluding the 5[th] May. The three learned Judges, In Re: CourtFees10 proceeded to author three separate Judgments. The majority viewis contained in the judgments of the Chief Justice and Justice V.M. CouttsBTrotter. In their Judgments, they took the view that the amended Scaleof Fees, though as already noted, represented an increase from an earlierScale of Fees, was to apply even in regard to the suits which came to beinstituted before the time of the Notification on 05.05.1922. In theJudgment of the learned Chief Justice, the following discussion is noted:C“2. … I approach this matter conscious of the salutary rule that,in all statutes imposing taxation, any real ambiguity must be decidedin favour of the subject and against the Grown. I consider that thehour of the day at which the Gazette was actually published is awhollyirrelevant consideration, because on neither view does itDmake any difference. If the Gazette had been published early inthe morning, according to the view of Kumaraswami Sastri, J.,the tax will come into operation only the next day. If it had beenpublished late in the night, according to the view of Coutts-Trotter,J., the tax would still be operative from the time the office openedfor the receipt of plaints on that day. I agree that we have nothingEto do with the English Common Law except in so far as it mayafford some guide as to the proper meaning to be attached towords in the English language.… .

3. … Applying the general rules stated above to this case, thenamed date must be included unless there is some valid reasonFwhy it should not be, and I can find none. It is true that it mayhave the effect of making persons pay more than they understoodthey had to pay when they filed their suits; but this seems to me aground for criticising the method of imposing this tax rather than aground for interpreting the notice in any particular way; and Ithink that this argument is more than counterbalanced by the factGthat this was sudden imposition of tax which in many casescould be avoided if notice was given of it in time for suits to befiled between the time of the publication and of its actually cominginto operation. …”

(Emphasis supplied)

52. In the Judgment of V.M. Coutts Trotter J., the learned Judgeobserves as follows:

“6. … What I conceive to emerge from the decided casesis this: that as the law in general neglects fractions of day youmust either exclude or include the whole of the day with which agiven statute or rule or regulation deals. Andthe exclusion orinclusion, I think, is clearly provided in two other rules. If you arefixing the point of time at which certain state of things is to becalled into existence, that state of things comes into existence atmidnight of the day preceding the day at which or on which orfrom which or from and after which the new state of things begins.In such cases the statute or rule is only concerned infixing theterminus o quo of new state of law which is enacted to continueindefinitely, in other words, until repealed by new enactment ofthe legislature where, in short, you have terminus quo but noterminus ad quem.………………………………… Where statute fixes only the terminus quo of state ofthings which is envisaged as to last indefinitely, the common lawrule obtains that you ought to neglect fractions of day and thestatute or regulation or order takes effect from the first momentof the day on which it is enacted or passed, that is to say, frommidnight of the day preceding the day on which it is promulgated:where, on the other hand, statute delimits period marked bothby terminus quo and terminus ad quem, the former is to beexcluded and the latter to be included in the reckoning. Thisnotification clearly falls within the former class and must be takento have come into force on the first second of the 5th May, that isto say, from midnight of the 4th May. It follows that the plaintsfiled on the 5th May are liable to the enhanced fees laid down bythe Regulation.

7. very large part of the argument addressed to us onbehalf of those who filed plaints on the 5th May was based onwhat was called hardship suffered by them if our decision shouldbe favourable to the Crown. Increased taxation is always in asense hardship to the subject but I cannot see any specialhardship imposed upon these particular litigants. If the suits whichthey filed are not in their opinion worth the expenditure entailedby the increased rate of institution fees, they would doubtless be

permitted to ? withdraw them-a suit evaluated at that rate by theperson who institutes it, is not likely to be based on very solidcause of action. ….”

(Emphasis supplied)

53. However, C.V. Kumaraswami Sastri, J., dissented. The learnedBJudge 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 thefacts 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,Cstate that I do not think that the principles which govern, or thedevices which are resorted to, by the Executive for the purposeof raising money by taxation ought to have any weight with usindetermining whether the date of publication is to be included orexcluded. I do not think the High Court is part ofthe tax gatheringDmachinery of the Government or has any concern with theconsequences to the Government of their decision on theconstruction of the rule. The rule, I take it, was passed by theJudges of the High Court in the exercise of the powers entrustedto them to control the administration of justice and the fees wereraised because in the opinion of the Judges it was just and properEthat litigants ought to pay more for the benefits which they deriveby resorting to the jurisdiction of the High Court. The notificationexpressly states that it is to have effect from the date of publication,the object of the publication being that the public ought to havenotice that the fees were being raised so that they might knowFexactly what they were in for when they resorted to the HighCourt for justice. The notification, as I have already said, was (asappears from note of the Deputy Registrar) received in theHigh Court at 5 p.m., the office closing at 5 p.m. It seems to methat the litigants who filed plaints before they or even the officehad knowledge of the publication of the rule did what was perfectlyGvalid under the old rules and they presented the plaints with Rs.30 stamp irrespective of the value of their claim. person whofiles plaint which is properly stamped and which is in order atthe time of presentation is entitled to have his plaint admitted onpresentation though as matter of convenience the office receivesHthe plaints and admits them at the end of the day or later on.

There seems to me to be very littlejustice or equity in directingthat persons who have done what was perfectly legal and validact at the time should pay Court-fee which is much higher simplybecause notification was received at the close of the day makingthe higher feeschargeable from the date of the notification. Itmay well be that if those persons had notice that instead of Rs. 30they had to pay at least Ra. 150 and maximum that would rangeaccording to the value of their claim, they might rather havecompromised with the other side or might have had resort to otherproceedings like arbitration for settling their claims. I can findnothing to justify charging people, who filed their plaints on thatday without knowledge of the notification which only reached theHigh Court at 5 p.m., with the higher fees in respect of plaintsfiled during the course of the day.

22. Having regard to all the facts and circumstances of the presentcase, I think that, if the law is that there is no hard and fast rule indeciding whether the word “from” is inclusive or exclusive of thedate of notification and that each case must depend upon its owncircumstances subject-matter, justice and equity demand that thedate of the notification ought to be excluded. I would, thereforedirect that all the plaints received on the 5th of May, 1922, bestamped with Rs. 30.”

(Emphasis supplied)

THE POSITION UNDER THE LAW RELATING TOPREVENTIVE DETENTION

54. Division Bench of High Court of Delhi had occasion toconsider the question again of time of operation in the followingcircumstances in the decision reported in Jasbir Singh vs. Union ofIndia11. The contentions urged by the detenu included the contentionthat the detention orders stood vitiated as in contravention of Section3(3) of the COFEPOSA Act, the grounds of detention was served onthe 6[th] day of the day of Order of detention being served. Section 3(3),inter alia, provides for communication to person of the grounds ofdetention as soon as may be after detention but ordinarily not later thanfive days and in an exceptional case and for reasons to be recorded inwriting not later than 15 days from the date of detention. The Division

ABench, which included Chief Justice M. Jagannadha Rao (as His Lordshipthen was), took note of judgment of the Madras High Court reported inIn Re: Court Fees12 under the Court Fee Act and took the view that theword “from” is similar to the word “after”, and therefore, the date onwhich 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 theBGovernment to complete many other formalities before serving thegrounds of detention. This is besides being guided by the use of words‘as soon as may be’.

THE CASES UNDER CONTRACTS OF INSURANCE

C55. In the decision reported in New India Assurance CompanyLimited vs. Ram Dayal and Others13, the vehicle was insured earlierupto 31[st] August, 1984. Instead of obtaining renewal, fresh insurancewas taken from 28[th] September, 1984. The accident took place on thevery same day, namely, 28[th] September, 1984. The insurer repudiated itsliability as the policy was taken after the accident. The High Court tookDthe view that the policy of insurance became operative from thecommencement of the date of insurance, namely, the previous midnight.This Court agreed with the view of the High Court that once policy istaken on particular day, its effectiveness is from the commencementof the day. It found the insurer liable. It is necessary only to noticeEparagraphs 5, 6 and 7:“5. As pointed out in Stroud’s judicial Dictionary ‘Date’ meansday, so that where cover not providing for temporary insuranceof motor car expires 15 days after date of commencement, itruns for the full 15 days after the day on which it was tocommence.”F6. Similarly it has been stated in Stroud that “a bill of exchange, ornote, is of the date expressed on its face, not the time when it isactually issued.”

56. The view taken by this Court in regard to the issue of theGliability of insurer with reference to the time at which the policy ofinsurance is taken, may be noticed from the recent judgment whichadverted to, not only Ram Dayal(supra) but the Judgment rendered by

12 AIR 1924 Madras 257H13 (1990) 2 SCC 680

three-Judge Bench, reported in Oriental Insurance Company Limitedv. Porselvi andAnother14 and another judgment reported in OrientalInsurance Company Limited v. Sunita Rathi and Others15. The recentjudgment is reported inNational Insurance Company Limited vs. GeetaDevi and Others16, I may refer to paragraphs 3 and 4 which adverts tothe decisions of this Court distinguishing Ram Dayal (supra). Finally, thisCourt took the view, there is cover note mentioning the time as 04:40p.m. and it was issued after the accident and therefore, the insurer wasnot liable:

“3. The question again came up for consideration in NationalInsurance Co. Ltd. v. Jikubhai Nathuji Dabhi; (1997) 1 SCC66. Reliance was placed on the abovementioned judgments.However, three-Judge Bench of this Court noted that the Tribunalhad recorded, as fact, that the policy had come into force at4:00 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 ofthe fact that the accident had occurred earlier, the insurancecoverage would not enable the claimant to seek recovery fromthe Insurance Company.

4. The question again arose in Oriental Insurance Co. Ltd. v.Sunita Rathi; (1998) 1 SCC 365, was relied upon. This courtdistinguished Ram Dayal case; (1990) 2 SCC 680, was reliedupon. This Court distinguished effective date and time of the policywas after the accident, the Insurance Company would not beliable.”

57. After having made reference to some of the decisions coveringdifferent branches of law, the question to be resolved comes into focus.It is clear that the situation which is presented before us, is not coveredby 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 form of delegated legislation, by which the Central Governmenthas 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., thereis no period for which it is to last as already noticed, and in that sense, it

14 1997 (1) SCC 66

15 1998 (1) SCC 365

16 2010 (15) SCC 670

Acan be argued that there would be no occasion for exclusion of the dateon which it was issued.WHETHER SECTION 5(3) OF THE GENERALCLAUSES ACT APPLIES TO THE NOTIFICATION?

58. Section 5 (3) reads as follows:B

“5(3) Unless the contrary is expressed, Central Act or Regulationshall be construed as coming into operation immediately on theexpiration of the day preceding its commencement.”

59. The argument of learned Additional Solicitor General is that inCterms of Section 5 (3), the notification issued under the Customs TariffAct 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 theword ‘Central Act’ and ‘Regulation’ in the General Clauses Act. Section3 (7) defines Central Act. It reads as follows:D“(7) “Central Act” shall means an Act of Parliament and shallinclude-

(a) an Act of the Dominion legislature or of the Indian Legislaturepassed before the commencement of the Constitution, and

E(b) an Act made before such commencement by the GovernorGeneral in Council or the Governor General, acting in legislativecapacity;”

60. Section 3 (50) defines ‘Regulation’. It reads as follows:

“3(50) “Regulation” shall mean Regulation made by the PresidentFunder article 240 of the Constitution and shall include Regulationmade by the President under article 243 thereof and Regulationmade by the Central Government under the Government of IndiaAct, 1870, or the Government of India Act, 1915, or theGovernment of India Act, 1935"G61. It is quite clear that the notification which is issued is onewhich is issued under Section 8A of the Tariff Act. The notification isnot one which is made by Central Legislature, namely, the Parliament. Ittherefore is not Central Law as defined in the Act. We have alsonoticed the definition of the word ‘Regulation’. The notification is not aHregulation 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 theGeneral Clauses Act, the notification must be treated as effective fromthe point of time immediately after mid night on 15/16 February, 2019.

THREE POSSIBLE VIEWS

62. There are three possible answers to the questions as to whatis to be the meaning of the word ‘day’, in the context of the provisions ofSection 15 the Customs Act and the Notification.

1. The first way to look at “the day”, would be to take it as afraction of day, viz., 16.02.2019, having its beginning at 20:46:58hrs. and ending with the midnight on 16.02.2019.

2. The second way to look at it is, it would operate only after themidnight of 16.02.2019, and would impact Bills of Entries presentedon 17.02.2019 onwards. In other words, it would be aninterpretation which would exclude 16[th] 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 midnighton 15.02.2019, and therefore, it would be the whole of the 24hours commencing at midnight of 15.02.2019 and would includethe period of time during the day during which the respondentshad presented the bill of entry”.

63. The question is certainly not free from difficulty. The solutionmust, however, be found. On one hand, we are dealing with Notificationby which the appellant has purported to increase the rate of duty to ahefty quantum of 200 per cent, following the incident which took placeat Pulwama. Would it be fair and reasonable to include the whole, theday 16.02.2019, having regard to the effect on the importer of the goodswho would have struck the bargain on the basis of rate of duty beingwhat it was prior to the Notification? Could it not be said that based onthe contracts for import, the importer would have entered into contractsfor sale of goods in India where the price would be fixed with referenceto the position obtaining as on the date of contract for import.

64. On the other hand, what we are called upon to decide, is thequestion of time at which the delegated legislation will take effect. It istrue that there is no equity about tax. The fact that there is suddenincrease in the rate of tax, may not render it vulnerable on the score thatit violates Fundamental Rights. [See in this regard, the Judgment of thisCourt in Pankaj Jain vs. UOI (supra)].

A65. If analogy is to be drawn from the majority view of MadrasHigh Court in the matter relating to Court Fees (supra), it can, indeed, beurged that the impact of the increased duty of import cannot by itselfdecide the question as to the point of time at which the delegated legislationmust operate from.B66. Yet another aspect which could not be over-looked is while itis true that in Section 15 of the Customs Act, what is referred to is therate of duty enforced on the date, the law itself entitles importer to havethe goods cleared upon payment of the duty which is accepted as correctin the self-assessment proceedings, following the due presentation ofthe bill of entry under Section 46 read with Rule 4(2) of the 2018CRegulations. In conjunction with the mandate of charging sectioncontained in Section 12 and Section 15 of the Customs Act which fixesthe date according to the rate of duty as the date of presentation of thebill of entries, could it certainly not be said that the law would abhor thereopening of transactions which have culminated in proceedings whichDare otherwise impeccably correct and regular. By way of re-assessmentcan matters concluded in the eye of law be revisited on the basis of anotification which comes much later in the day? There is yet anotheraspect which must also be borne in mind. The question before us, ariseson the basis of notification which is, indeed, form of delegated legislationwhich is issued under Section 8A of the Tariff Act. Section 8A of theETariff Act empowers the Central Government to increase the rate ofimport duty but the power to issue notification under Section 8A, is notconferred to increase the rate of import duty with retrospective effect.

67. We may at once notice the counter argument. By ensuringfull play for the notification for the whole of the day on which it wasFissued, the provisions of Section 15 of the Customs Act in the view ofAdditional Solicitor General, are duly honoured. It is his argument thatany other view would involve rewriting of Section 15, as Section 15contemplates the rate of duty to be the rate of duty for the day. Therecannot be two rates of duty at given point of time. If the rate of duty,on proper interpretation of the Notification would hold the field at allGpoints of time during the whole of 16.02.2019 at which the respondentsmay have presented the Bills of Entry in tune with the prevailing rates ofduty which would have been applicable otherwise, it would not detractfrom the power of authority to reassess on the strength of an instrumentlike the Notification. What would logically and inexorably follow, in otherHwords, 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, thecorrect rate of duty at which the importers were to pay the duty. Thereis no illegality involved in resorting to power enabling reassessment andrecovery of the correct duty from the respondents. In other words, thereis no retrospectivity involved, runs the argument.

68. There can be no doubt that the principle which appears tohave evolved over period of time is that generally, the law frowns upondetermining day with reference to its fractions. Undoubtedly, in thecase of Central Act or Regulation, the principle is statutorily incorporatedin Section 5(3), that unless contrary intention appears, it begins itsjourney in the Statute Book from the first point of time past the stroke ofthe previous midnight. Section 5(3) does not apply to the notificationwhich is form of delegated legislation, as found hereinbefore.

69. If the contention of the Union of India is accepted, though thenotification is issued late in the evening, the ‘day’ referred in Section 15of the Customs Act would commence from the first moment past themidnight of 15.02.2019. The diametrically opposite option would be toexclude the whole of the day on which the notification was issued andthe third option is that the day would consist of the hours remaining ofthe 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 thenotification was 20:46:58 hrs. and continued till midnight of 16.02.2019.It would indeed constitute fraction or part of an ordinary day consistingof 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 theNotification is issued. This is because in answer to query as to whatwould be the position if the Notification had been issued at 10.00 a.m. on16.02.2019 and the Bills of Entry were presented after 10.00 a.m., hisresponse was, the importers would have to pay the higher rate of dutyunder the Notification. Therefore, his argument appears to be that aNotification must come into operation with reference to the point of timeof the day when the Notification was issued.

71. The principle that fractions of the day are eschewed fromconsideration, is not universal principle which knows no exceptions.

72. Section 48 of the Transfer of Property Act, 1882, reads asfollows:

A“48. Priority of rights created by transfer.—Where personpurports to create by transfer at different times rights in or overthe same immoveable property, and such rights cannot all exist orbe exercised to their full extent together, each later created rightshall, in the absence of special contract or reservation bindingthe earlier transferees, be subject to the rights previously created.”B

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 adocument is registered, will determine the question of priority, andconsequently, of title itself, to the property concerned and it is open toparties to adduce evidence in this regard.C

74. Section 47 of the Registration Act, 1908, reads as follows:

“47. Time from which registered document operates.—Aregistered document shall operate from the time which it wouldhave commenced to operate if no registration thereof had beenDrequired or made, and not from the time of its registration.”

Here again, the time of the day may become decisive. The recentdecisions of this Court in regard to insurance contracts appear to acceptthe 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:-

E“5. Coming into operation of enactments.—

(1) Where any Central Act is not expressed to come into operationon particular day, then it shall come into operation on the day onwhich it receives the assent,—

F(a) in the case of Central Act made before the commencementof 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 tobe treated differently from delegated legislation. law if made byGParliament including change in the rate of duty in the Customs-TariffAct would involve process which is attended by certain level ofpublicity. In this regard, the words of Bailhache, J. inJohnson v. Sargant& Sons17; 1917 1 K.B. 101, come to mind:-

“While I agree that the rule is that statute takes effect on theearliest moment of the day on which it is passed or on which it isdeclared to come into operation, there is about statutes publicityeven before they come into operation which is absent in the caseof many Orders such as that with which we are now dealing ;indeed, if certain Orders are to be effective at all, it is essentialthat they should not be known until they are actually published.”

There is process and time involved in Parliament which is unlikewhat happens in the case of delegated legislation of the sort in particular,projected in these cases, namely, notification issued by the executiveunder Section 8A. It is on this basis that the law made by the legislatureis taken as known to the public and mere assent of the President wouldsuffice and the need to make any delegated legislation known bypublication before it becomes effective is insisted upon. Publication inthe case of delegated legislation is based on rationale. On this rationaleeven the principle embedded in Section 5 in regard to the law made bythe legislature cannot be applied to notification issued under Section8A of the Tariff Act.

76. The view taken by Justice Kumaraswami Sastri, in Re: CourtFees(supra), in the context of the increase in the Court Fee, effectedunder Notification, which came to the High Court only at about 05.00p.m., which was around the time when Court closed down, was toexclude the operation of the increased Court Fee qua the suits whichwere filed during the course of the day.

77. At the time, when the Madras High Court considered thequestion, it may be noticed that the Constitution of India was not inforce. The matter has not been approached on an analysis as to thenature of subordinate legislation and the point of time when subordinatelegislation comes into force. The concept of State action, satisfying therequirement of it being fair, as is the mandate of Article 14, could nothave been possibly considered by the learned Judges of the MadrasHigh Court. Under the Customs Act read with the Tariff Act, as noticed,the Scheme provides for an importer, wishing to enter goods for homeconsumption, to file Bills of Entry, do self-assessment and pay the dutyon the same day. If all goes well, which means that the self- assessmentis in accordance with the existing law, and the rate of tax is calculatedwith reference to the rate of duty as stipulated and the amount of duty is

Apaid, 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, thegoods are prohibited goods, to issue an Order permitting clearing thegoods. Though, there is no Order for clearing the goods in these casesunder Section 47, the said Order is the culmination of the steps to beundergone by an importer for clearing the goods. Once the self-Bassessment is correct and the other conditions in Section 47 do not militateagainst the importer, the goods can be physically cleared, and havingregard to the definition of the “imported goods”, they cease to be importedgoods.

78. In the context of the Customs Act, and having regard to theCScheme, which, in the case of import duty, consists of filing of Bill ofEntry for home consumption, self-assessment and payment of duty onthe basis of the same and the rate being clearly fixed with reference tothe particular point of time when the Bill of Entry is presented and thereis deemed presentation and even deemed assessment, which isDotherwise in order, and bearing in mind the principle that Section 8Adoes not provide power for increase of rate of duty with retrospectiveeffect, the Notification must be treated as having coming into force notbefore its publication which is at 20:46:58 hrs. on 16.02.2019. This wouldnecessarily mean that the Notification cannot be used to alter the rate ofduty on the basis of which, in fact, there was presentation of Bill ofEEntry several hours ago, the self-assessment was done and what is more,the self-assessment was completed under Regulation 4(2) of the 2018Regulations. There cannot be re- assessment. The interpretation basedon time of publication is in harmony with view that accords respect forvested rights.FTWO INCONSISTENT RATES AT THE SAME POINTOF TIME

79. There is no merit in the submission of the appellants in thisregard. Once it is found that the notification upon publication would takeeffect from the time of its publication then in regard to the bills of entriesGwhich stand presented within the meaning of Section 46 of the CustomsAct 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 dutywhich prevailed at the time of the deemed presentation under Regulation4(2) of the 2018 Regulations.H

EFFECT OF THE WORD “OTHERWISE” IN SECTION17(4) OF THE CUSTOMS ACT, 1962

80. The expression “otherwise” in Section 17(4), will not come tothe rescue of the appellants, in the facts of the instant case. While theword “otherwise” may be capable of taking care of situations which arenot covered by the preceding expressions, viz., verification, examination,attesting of the goods, it cannot mean that it will empower the Officer toalter the rate of duty which is prevalent at the time of the self-assessmentfollowing the due presentation of the Bill of Entry. If it is otherwise, itwill be open to the Department to reopen cases of concluded assessmentsby virtue of the deemed completion of assessment under Regulation4(2) without any legal justification. That would be plainly impermissiblebeing illegal. This is not case where the assessment is assailed on anyother ground except by insisting on rate of duty which is in applicable.

WHETHER THE CASE LAW RELIED UPON BY THEAPPELLANTS MILITATE AGAINST THE AFORESAID VIEW

81. The question which arose before the Constitution Bench ofthis court in M/s. Bharat Surfactnts (P) Ltd. v. Union of India18 maynot assist the appellants.The case involved challenge to Section15(1)(a) of the customs Act. This court repelled the challenge. Moreimportantly, that was case where the vessel in which the goods werecarried belonging to the petitioners arrived on 11[th] July 1981. Berth wasnot available. By reason of the same it could not discharge its cargo atBombay. This court took the view that what is relevant is the date onwhich the Bill of Entry is presented. Therefore, it cannot be treated asauthority for the proposition canvassed by the appellants. The decisionof this Court in Priyanka Overseas (P) Ltd. v. Union of India19 alsowill not assist the appellant in persuading this Court to answer the questionin favour of the appellant. No doubt, the court has reiterated the principlein Section 15 of the Customs Act and the question actually fell for decisionunder 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 applicablein the case of goods cleared from warehouse under Section 68 to berate on the date on which the goods were actually removed from thewarehouse. Quite apart from the fact that the said provision has beenamended, we are in this case concerned with Section 15(1)(a) and what

18 1989 (4) SCC 21

19 1991 Suppl. (1) SCC 102

Ais more important, the actual question is the impact of the notificationissued under Section 8A and what is the significance of the word “thedate”. In the decision of this Court in Dhiraj Lal H. Vohra v. Union ofIndia20, the ship arrived at the port on 2.3.1989 and inward entry wasalso given on the same day. The contention taken by the appellant thatthe ship had entered the Indian territorial waters on 20.2.1989 and wasBready to discharge the cargo was found irrelevant for purposes of Section15(1) read with Sections 46 and 31 of the Customs Act. This decisionalso does not assist the Court in deciding the question which squarelyfalls for decision. The decision of this Court inD.C.M.Ltd. and AnotherV. Union of India21 involved challenge to the validity of Section 15(1)(b)Cof the Customs Act. Following the filing of “Bill of Entry for warehousing”on 24.2.1982, the imported goods were warehoused. The goods werecleared from the warehouse on 3.3.1982 and 15.4.1982. On the basis ofSection 15(1)(b) taking note of the dates of clearance from the warehouse,the duty was levied. The Court noted that Section 12, the charging sectionwas subject to Section 15 among other sections. An option was given toDthe importer to either file Bill of entry for home consumption straightaway in which case he has to pay the duty based on the filing of the billof entry. In the case of bill of entry for warehousing, the date of clearanceof the goods determined the rate under section 15(1)(b) as it stood. Itdoes not have any effect qua the facts of the case before this CourtEexcept that what determines the date of the rate will be found fromSection 15 of the Customs Act.

82. Coming to the decision of this Court in Raj Kumar Yadav v.Samir Kumar Mahaseth22, the facts of the case was that an electionpetition was presented on 27.8.2003 after the designated judge had retiredFto his chamber at 4.15 p.m.. The last date of limitation was 27.8.2003.The court inter alia held as follows:

“6. The limitation provided by Section 81 of the Act expires on the45th day from the date of election. The word “day” is not definedin the Act. It shall have to be assigned its ordinary meaning asGunderstood in law. The word “day” as per English calendar beginsat midnight and covers period of 24 hours thereafter, in theabsence of there being anything to the contrary in the context.

20 1993 Suppl. (3) SCC 453

21 1995 Suppl. (3) SCC 223

H22 2005 Suppl. (3) SCC 601

(See Ramkisan Onkarmal Agrawal v. State of Maharashtra [AIR1994 Bom 87 : 1994 Mah LJ 369] , AIR at p. 94, Municipal Councilof 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 presentedup to the midnight falling between 27-8-2003 and 28-8-2003.”

This Court also found that the High Court should not have allowedthe period of limitation to be abridged by the rules. This is besides alsofinding that the rules were not properly appreciated. It is to be noted thatquestion involved was the period of limitation to file the election petition.The last day was therefore understood in the manner done. The decisionof this Court in Ahmadsahab Abdul Mulla(2) (Dead) By ProposedLRs. vs. Bibijan and others23 dealt with the effect of the use of theexpression ’date’ 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. RamanathaAiyar, 3rd Edn., 2005, the word “date” means as follows:

“Date. — (As noun) The point of time at which transactionor event takes place; time given or specified; time in some wayascertained and fixed; in deed, that part of the deed or writingwhich expresses the day of the month and year in which it wasmade, (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 nottime in the abstract, nor time taken absolutely but, as its derivationplainly indicates, time given or specified time in some wayascertained and fixed; this is the sense in which the word iscommonly used. When we speak of the date of deed, we do notmean the time when it was actually executed but the time of itsexecution, as given or stated in the deed itself.’

‘Where deed bears no date, or an impossible date, and in thedeed reference is made to the “date”, that word must be construed“delivery”; but if the deed bears sensible date, the word “date”,

occurring in the deed, means the day of the date, and not that ofthe delivery’ (Elph. 123, citing Styles v. Wardle [(1825) 4 & C908 : 107 ER 1297] ; …).

‘Date’, though sometimes used as the shortened form of ‘day ofthe date’, is not its synonym; but means the particular time onwhich an instrument is given, executed, or delivered (Howardcase [2 Salkeld 625: 91 ER 528: 1 Ld Raym 480: 91 ER 1219] ;Armitt v. Breame [(1704) 2 Ld Raym 1076: 92 ER 213] andPewtress v. Annan [(1841) 9 Dowl 828] , Dowl at pp. 834-35).…

‘The word “date” is much more commonly descriptive of daythan of any smaller division of time’ (per Stormonth Darling, L.O.,Simpson v. Marshall [37 Sc LR 316] Date means day, so thatwhere cover note providing for temporary insurance of motorcar expires ‘15 days after date of commencement’ it runs for thefull 15 days after the day on which it was to commence(Cartwright v. MacCormack [(1963) 1 WLR 18 : (1963) 1 AllER 11 (CA)] ).”

XXX XXX XXXXXX

11. The inevitable conclusion is that the expression “date fixed forthe performance” is crystallised notion. This is clear from thefact that the second part “time from which period begins to run”refers to case where no such date is fixed. To put it differently,when date is fixed it means that there is definite date fixed fordoing particular act. Even in the second part the stress is on“when the plaintiff has notice that performance is refused”. Hereagain, there is definite point of time, when the plaintiff noticesthe refusal. In that sense both the parts refer to definite dates. So,there is no question of finding out an intention from othercircumstances.

12. Whether the date was fixed or not the plaintiff had notice thatperformance is refused and the date thereof are to be establishedwith 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 specified date in the calendar.We answer the reference accordingly. The matter shall now beplaced before the Division Bench for deciding the issue on merits.”

The decision may not assist the appellants in the nature of thequestion which falls for decision in the appeals before this Court.

83. The decision of this Court reported in Pashupati Nath Singhvs. Harihar Prasad Singh;24 relied upon by the appellant arose underthe Representation of People Act, 1951. The petitioner therein was acandidate for the election to the Bihar Legislative Assembly. He filed hisnomination paper on 16.1.1967. His nomination paper was rejected.Petitioner challenged the election of the returned candidate, on the groundof illegal rejection of his nomination paper. Section 36 of the Act providesfor scrutiny of nomination paper. The objection taken which resulted inthe nomination of the petitioner being rejected was that he had not madeand subscribed the requisite oath or affirmation in the form which isprescribed. Section 36 uses the words ‘the date fixed for scrutiny’ It isinterpreting the said words in Section 36 (2) (a) that the Court held asfollows:

“13. It seems to us that the expression “on the date fixed forscrutiny” in Section 36(2)(a) means “on the whole of the day onwhich the scrutiny of nomination has to take place”. In other words,the qualification must exist from the earliest moment of the day ofscrutiny. It will be noticed that on this date the Returning Officerhas to decide the objections and the objections have to be madeby the other candidates after examining the nomination papersand 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 aposition to raise all possible objections before the scrutiny of aparticular nomination paper starts. In particular case, an objectionmay be taken to the form of the oath; the form of the oath mayhave been modified or the oath may not have been sworn beforethe person authorised in this behalf by the Election Commission.It is not necessary under Article 173 that the person authorised bythe 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 & 335] , in which the followingoccurs:

“… we hold it therefore to be unnecessary to refer to instancesBof the legal meaning of the word ‘upon’ which, in different cases,may undoubtedly either mean before the act done to which itrelates, or simultaneously with the act done, or after the actdone, according as reason and good sense require the interpretation,with reference to the context and the subject-matter of theCenactment.”

15. Bovill, C.J., observed that “that is very clear statement ofthe various meaning of the word ‘on’ or ‘upon’.”

16. In this connection it must also be borne in mind that lawDdisregards, as far as possible, fractions of the day. It would leadto great confusion if it were held that candidate would be entitledto qualify for being chosen to fill seat till the very end of the datefixed for scrutiny of nominations. If the learned Counsel for thepetitioner is right, the candidate could ask the Returning OfficerEto wait till 11.55p.m. on the date fixed for the scrutiny to enablehim to take the oath.”

Clearly the context and the purpose of the statute guided the courtin holding that the law disregards fractions and it must be noted thateven then in the said case it was laid down that the fractions of the dayFare to be disregarded as far aspossible.

84. The decision of this Court on Vikram Singh alias Vicky andAnother v. Union of India and Others25 is relied upon to contend thatthe presumption runs that the legislature is well aware of theGcircumstances and the effect of the words that have been employed byit. In other words, the contention appears to be that since the word ‘thedate’ 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 andAnotheer v. Hindustan Machine Tools Ltd.[26]is concerned, and thepurpose for which it is relied upon, the decision appears to be inappositein the facts. The contention taken is that it is competent for the legislatureto make law retrospectively and as the rate of duty is to be determinedas the rate in force on the day Section 15 is determinative. It is one thingto say that the legislature may have the power to make law withretrospective effect subject to limitations imposed by the Constitutionand quite another to contend that delegated legislation would carryretrospective effect irrespective of power to make such law conferredby the parent enactment on the delegate. More importantly the schemeof the Customs Act and the Tariff Act and the Regulation 4(2) of the2018 Regulations rule out the tenability of applying the notification in themanner sought by the appellants.85. Reliance placed on the judgmentsVideo Electronics Pvt. Ltdsand Another vs. State of Punjab and Another;27, Tamil NaduElectricity Board and Another v. Status Spinning Mills Limited andAnother;28 of this Court, taking the view that the Schedule to an act is apart of the act and therefore an amendment to the Schedule by virtue ofsuch notification is an amendment to the Act itself and therefore, thenotification issued under Section 8A of the Tariff Act partakes thecharacter of legislation, is clearly untenable, if it is intended to conveythat the notification issued under Section 8A of the Tariff Act is made bythe legislature itself. By its very nature, delegated legislation is legislativein character but if it is to be Central Act within the meaning of Section5 of General Clauses Act, it must be made by the legislature. Delegatedlegislation which is called administrative legislation in England, is exerciseof legislative power by the executive. It is to be further noticed the factthat the notification issued under Section 8A is in the exercise of itslegislative power or that it may have to be read in the same manner as ifit is part of the Act, will not detract the Court from ascertaining as towho is the author of the exercise of the legislative power, namely, whetherit is an exercise of power by the legislature or by its delegate. Upon

26 1975 (2) SCC 274

27 1990 (3) SCC 87

28 2008 (7) SCC 353

Aanswer to the question, namely, that the author of the legislative effort isthe executive, the question would necessarily arise as to whether there ispublication. In the scheme of the Customs Act, the Tariff Act and the2018 Regulations, the time at which the notification under Section 8A ispublished would indeed have relevance as already found.

86. In this view of the matter, the Appeals are found to be withoutmerit and the same will stand dismissed.

Devika Gujral

***END OF 2020***

Appeals dismissed.