2006 Supreme(SC) 827

2006(7) Supreme 161
SUPREME COURT OF INDIA
(From Customs, Excise & Service Tax Appellate Tribunal, New Delhi)
S.B. Sinha & Dalveer Bhandari, JJ.
M/s. Sneh Enterprises—Appellant
versus
Commnr. of Customs, New Delhi—Respondent
Civil Appeal No. 706 of 2005
Decided on 8-9-2006
Counsel for the Parties :
For the Appellant ; P.C. Jain, Rajesh Kumar and Sandeep Jain, Advocates.
For the Respondent : K.P. Pathak, A.S.G., Ms. Binu Tamta and B. Krishna Prasad, Advocates.

Headnote:Customs Tariff Act, 1975—Section 9A—Anti-dumping duty—Notification issued by Central Govt. on 22-5-2002 on lead acid batteries, originating in or exported, from Taiwan, Singapore and Hong Kong—Appellants imported lead acid batteries manufactured in Taiwan at Mumbai on 16-4-2002—Bill of Entry was filed by appellant with Customs authorities at Delhi on 22-5-2002—Levy of anti dumping duty—Appellant’s contention that taxable event having occurred on 16-4-2002 and notification dt. 22-5-2002 being prospective, no liability could be imposed was rejected—Appeal—Anti-dumping duty does not attract provisions of Customs Act—Anti-dumping duty on dumped articles is required to be determined on importation of article into India—Duty would be payable in respect of goods which have already entered into Territory of India and were warehoused—Question as to when import of goods completed would depend on contract between parties and/or statute governing the field—Common law principle would apply which would mean import would be complete when goods enter territories of country—Impugned order could not be sustained.

       Held : The anti-dumping duty, as noticed hereinbefore, does not attract the provisions of the Customs Act. If the provision of law is incorporated by reference, it was obligatory on the part of the Parliament to say so. Such a provision was brought for the first time in the year 2004. The doctrine of incorporation by reference is, therefore, not attracted. (Para 12)

        Section 9A of the Customs Tariff Act clearly states that imposition of anti-dumping duty on dumped articles is required to be determined "upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article". Quantum of additional duty, therefore, was required to be determined when the goods have been imported and is subject for clearance.(Para 18)

       Anti-dumping duty would be payable in respect of the goods which have already entered Indian Territory and are warehoused.(Para 20)

       The question as to when import of goods is complete would depend upon contract between the parties and/or statute governing the field. It is not a part of common law that the import of the goods would be deemed to have been completed only when it passes the customs barrier. Such a provision had been made for achieving definite purposes, i.e., for the purpose of calculating customs duty. In absence of a statute, the contract between the parties would not be superceded. Sub-Section 6 of Section 3 or Sub-Section 8 of Section 9A of Customs Tariff Act was enacted to achieve a specific purpose. Its operation is limited from the date it came into force. It cannot be applied with retrospective effect. Unless there exists a statutory interdict, common law principle would apply which would mean that import would be complete when the goods enter the territories of the country. Taxable event in terms of the notification issued under Section 9A of the Act is on importation of the good and not when the same passes the customs barrier. The goods in question landed at Mumbai. They were trans-shipped to Delhi. They were, however, cleared at Delhi. The goods might have passed the customs barrier on the day on which the Bill of Entry was filed by the appellant for the purpose of Customs Act. But such importation of goods, in terms of the provisions of the Customs Act, was meant only for computation of duty thereunder and not for any other purpose. In other words, a situation contemplated under one statute cannot, in absence of any express or clear intendment, be made to apply or be given effect to while applying the provisions of another statute.(Paras 22 & 23)

       The notification dated 22.5.2002, on its face value, is prospective in operation and not retrospective. It, in no uncertain terms, states that Central Government thereby may impose duty only, inter alia, on lead acid batteries originated from the countries specified therein and imported into India. The proviso appended to the notification provides for a clue in the sense that by reason thereof no duty was to be imposed on industrial lead acid batteries manufactured by the manufacturers named therein. The anti-dumping duty imposed thereby was to remain effective only for a limited period, i.e., upto 21st November, 2002. For the aforementioned reasons, the impugned judgment cannot be sustained, which is accordingly set aside.(Paras 26 & 27)