UNION OF INDIA & Ors. v. M/S G S CHATHA RICE MILLS & Anr.

2.2. Generally, the law frowns upon determining a day with reference to its fractions. Undoubtedly, in the case of Central Act or a Regulation, the principle is statutorily incorporated in Section 5(3), that unless a contrary intention appears, it begins its journey in the Statute Book from the first point of time past the stroke of the previous midnight. Section 5(3) does not apply to the notification which is a form of delegated legislation. [Para 68]

3.1. The law which is made by the legislature is to be treated differently from delegated legislation. A law if made by Parliament including a change in the rate of duty in the Customs-Tariff Act would involve a process which is attended by a certain level of publicity. [Para 75] A B C D E F G H UNION OF INDIA & ORS. v. M/S G S CHATHA RICE MILLS & ANR. 583

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

#4. In the context of the Customs Act, and having regard to the Scheme, which, in the case of import duty, consists of filing of Bill of Entry for home consumption, self-assessment and payment of duty on the basis of the same and the rate being clearly fixed with reference to the particular point of time when the Bill of Entry is presented and there is a deemed presentation and even a deemed assessment, which is otherwise in order, and bearing in mind the principle that Section 8A of the Customs Tariff Act, 1975 does not provide power for increase of rate of duty with retrospective effect, the Notification must be treated as having coming into force not before its publication which is at 20:46:58 hrs. on 16.02.2019. This would necessarily mean that the Notification cannot be used to alter the rate of duty on the basis of which, in fact, there was presentation of Bill of Entry several hours ago, the self-assessment was done and what is more, the self-assessment was completed under Regulation 4(2) of the 2018 Regulations. There cannot be reassessment. The interpretation based on time of publication is in harmony with a view that accords respect for vested rights. [Para 78]

#5. Once it is found that the notification upon publication would take effect from the time of its publication then in regard to the bills of entries which stand presented within the meaning of Section 46 of the Customs Act read with 4(2) of the 2018 Regulations, earlier to such publication, the rate of duty in regard to the same would be only the rate of duty which prevailed at the time of the deemed presentation under Regulation 4(2) of the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations, 2018. [Para 79] A B C D E F G H 584 SUPREME COURT REPORTS [2020] 14 S.C.R. A B C D E F G H

#6. While the expression “otherwise” in Section 17(4) of the Customs Act, 1962, may be capable of taking care of situations which are not covered by the preceding expressions, viz., verification, examination, attesting of the goods, it cannot mean that it will empower the Officer to alter the rate of duty which is prevalent at the time of the self-assessment following the due presentation of the Bill of Entry. If it is otherwise, it will be open to the Department to reopen cases of concluded assessments by virtue of the deemed completion of assessment under Regulation 4(2) without any legal justification. That would be plainly impermissible being illegal. [Para 80]

#7. By its very nature, delegated legislation is legislative in character but if it is to be a Central Act within the meaning of Section 5 of General Clauses Act, it must be made by the legislature. Delegated legislation which is called administrative legislation in England, is exercise of legislative power by the executive. The fact that the notification issued under Section 8A is in the exercise of its legislative power or that it may have to be read in the same manner as if it is a part of the Act, will not detract the Court from ascertaining as to who is the author of the exercise of the legislative power, namely, whether it is an exercise of power by the legislature or by its delegate. Upon answer to the question, namely, that the author of the legislative effort is the executive, the question would necessarily arise as to whether there is publication. In the scheme of the Customs Act, the Tariff Act and the 2018 Regulations, the time at which the notification under Section 8A is published would indeed have relevance. [Para 85] 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. Union of India 1993 Suppl. (3) SCC 453:[1992] 3 Suppl. SCR 494; D.C.M. Ltd. and Another v.. Union of India 1995 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 of Andhra Pradesh and Another v. Hindustan Machine Tools Ltd. 1975 (2) SCC 274: [1975] SCR 394 – distinguished. UNION OF INDIA & ORS. v. M/S G S CHATHA RICE MILLS & ANR. 585 Collector of Central Excise v. New Tobacco Company and others (1998) 144 CTR (SC) 618 – held not good law. Union of India and others v. Ganesh Das Bhojraj 2000 (9) SCC 461:[2000] 1 SCR 1081- held applicable.