Kusum Trading Company vs Union of India (UOI)

M.B. Shah, C.J.—It is the contention of the Petitioners that they imported 100 metric tonnes of Turkish Chick Peas. For this purpose, the Petitioners entered into a contract in the month of August 1988. The said goods were shipped on board the vessel M.V. RODANTHI for carriage from Mersin (Turkey) to Bombay. The vessel was expected to arrive in Bombay on 29th September 1988. The Petitioners filed a Bill of Entry on 6th October, 1988 for clearance of the said goods. At that time, in terms of Notification No. 129 of 1976, Customs duty at the rate of 10% was leviable. However, the vessel came in inner anchorage on 2nd October 1988 at 0640 hours and was granted "entry inwards" on 3rd October 1988. It is the submission of the Petitioners that on or about 4th October 1988, reports appeared in the newspapers that Notification No. 129/76 was amended by Notification No. 286/88 and duty of pulses was increased from 10% to 35% ad valorem. It is contended that no Extraordinary gazette of India was printed or issued on 3rd October 1988 and no such gazette was available. The Customs Department in Bombay came to know of the Notification on 4th October 1988 and, therefore, levy of duty at the rate of 35% on the basis of Notification No. 286/88 is illegal. It is, therefore, prayed that the Respondents be directed to permit the Petitioners to clear the goods on payment of duty assessed @ 10%.

When the matter came up for admission on 4th November 1988, the Court issued Rule and granted interim relief to the Petitioners.

The learned Counsel for the Respondents has, today, produced on record a gazetted copy of the said Notification dated 3rd October, 1988. He submitted that the question of its publicity or availability to the public is already covered by the decision rendered by the Supreme Court in the case of M/s. Pankaj Jain Agencies Vs. Union of India and others,

In the aforesaid case, the Supreme Court dealt with a similar contention that it was not sufficient that a Law, Regulation, Statutory Instrument or subordinate legislation is promulgated; and that for their coming into operation, it is necessary that they are made known or broadcast in some recognizable way, so that all men may know what it is. In the said case, it was also contended that until the Notification was available in Bombay and shown to be available, the statutory rule or instrument would not become operative. That contention was negatived by the Court after relying upon its earlier decisions in the case of State of Maharashtra Vs. Hans George, and B.K. Srinivasan and Others Vs. State of Karnataka and Others, . The Court observed that the mode of publication prescribed by Section 25(1) of the Customs Act was complied with. The Notification was published in the Official Gazette. There was no substance jn the contention that, notwithstanding the publication in the Official Gazette, there was yet a failure to make the law known and that, therefore, the Notification did not acquire the elements of operative ness and enforceability. The Court also negatived the contention that sudden and sharp increase of duty steeply increases the Petitioners'' liability and it constitutes an unreasonable restriction on the Petitioners'' fundamental rights under Article 19(1)(g) of the Constitution by observing that mere excessiveness of a tax is not, by itself, violative of Article 19(1)(g) and also that there is no absolute right, much less a fundamental right, to import.

In the aforesaid case, the Court has referred to its earlier decision in the case of Bharat Surfactants (Private) Ltd. and Another Vs. Union of India (UOI) and Another, . In the said case, the Court has held as under :-.

"The provisions of Section 15 are clear in themselves. The date on which a Bill of Entry is presented u/s 46 is, in the case of goods entered for home consumption, the date relevant for determining the rate of duty and tariff valuation, where the Bill of Entry is presented before the date of Entry. Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards."

The Court has also held that "the date of entry inwards of the vessel" is the date recorded as such in the Customs register.

In view of the aforesaid law enunciated by the Supreme Court, there is no substance in this Petition.

In the result, Petition is dismissed. Rule is discharged with no order as to costs.

Interim relief stands vacated.