SC: Import duty can’t be retrospective on goods from Pak

Published: Sep 24, 2020, 12:49 am IST

New Delhi: The Supreme Court has held that the Centre’s decision to increase import duty on goods from Pakistan by 200 per cent in the backdrop of last year’s Pulwama attack could not be applied retrospectively.

A bench comprising Justices D.Y. Chandrachud, Indu Malhotra and K.M. Joseph said that the notification published under Section 8A of the Customs and Tariff Act, 1975, late in the evening of February 16, 2019, cannot have retrospective effect.

“The object and purpose is not to penalise 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, prior to the issuance of the notification,” said the bench.

Chandrachud and Joseph wrote separate but concurring opinions.

Forty CRPF men were killed in a terror attack in Pulwama in Jammu and Kashmir on February 14 last year. Two days after the attack, the Centre issued a notification under Section 8A of the Customs Tariff Act 1975, which subjected all goods originating from Pakistan to 200 per cent enhanced customs duty.

The consignments of import covered a diverse range of goods, ranging from dry dates to cement.

“The legal position which needs emphasis is that the entrustment of the power to issue a notification enhancing the rate of duty under Section 8A is not accompanied by a statutory entrustment of authority to the Central government to exercise it with retrospective effect. An enhancement of the rate of duty pursuant to the exercise of power under Section 8A can only be prospective,” noted the top court.

The precise time when the notification was uploaded on the e-Gazette was 20:46:58 hours. Customs authorities at the land customs station at Attari sought to enforce the enhanced rate of duty on importers who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-Gazette.

This action was challenged before the Punjab and Haryana High Court, which ruled in favour of the petitioners. The Centre had appealed this decision in the apex court.

The bench noted that the provisions of sub-sections (3) and (4) of Section 7, which are made applicable by sub-section (2) of Section 8A, are to ensure Parliamentary oversight, but this does not enable the Centre to exercise the power under Section 8A with retrospective effect.

The rate of duty which was applicable was crystallised at the time and on the date of the presentation of the bills of entry in terms of the provisions of Section 15 read with Regulation 4(2) of the Regulations of 2018.

“The duty was correctly assessed at the time of self-assessment in terms of the duty which was in force on that date and at the time. The subsequent publication of the notification bearing 5/2019 did not furnish a valid basis for re-assessment. For the above reasons, we have come to the conclusion that there is no merit in the appeals. The appeals shall stand dismissed,” said the top court.

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