JUDGMENT
Ajit Kumar Sengupta, J.
1. In this application under Article 226 of the Constitution of India, the petitioner has challenged the show-cause notice dated 5th March, 1993 issued by the Asstt. Collector of Customs, Postal Appraising Department.
2. Shortly stated the facts leading to this application are that in the course of business the petitioner entered into contract with M/s. Goldsmith Seeds, Inc. Gilory, CA 95021, USA for supply of Flower Seeds. As would appear from the Invoices of the said foreign supplier being Invoice Nos. 4251, dated 1st June, 1992, 4281, dated 4th June, 1992 and 4337 dated 15th June, 1992 the said foreign supplier by Registered Air Mail sent the petitioner the subject Flower Seeds.
3. Government of India, Ministry of Agriculture issued a circular dated 15th June, 1992 being No. 5-9/92 Tech. on the subject of relaxation of Import Permit wherein at Clause 2 it was unambiguously provided that ‘Import Permit and Phytosanitary Certificate’ are no longer required for the import of plant and plant materials meant for consumption, or sowing/planting imported as accompanied baggage and through Postal Channel.
4. When the parcels of the flower seeds arrived by post, the Asstt. Collector of Customs (PAD) first issued a letter dated 17th June, 1992 and then show cause notices on 26th June, 1992 and then on 6th July, 1992 by which the petitioner was requested to produce guarantee certificate from Plant Protection Adviser, West Bengal, Invoice/Packing list and other documentary evidences regarding the value of the goods.
5. The Directorate of Plant Protection Quarantine & Storage Plant Quarantine & Fumigation Station at Garden Reach Road, under the Ministry of Agriculture issued certificates dated 18th July, 1992 and 18th August, 1992 in respect of Post Parcel No. C. 131660 of 6/92 and Post Parcel No. C-A 9058/L of 6/92 respectively to the respondent No. 3, Asstt. Collector of Customs (PAD), that the said parcels had been inspected and the same were recommended for release.
6. On 26th August, 1992, a clarification was issued by the Joint Chief Controller of Imports & Exports by which it has been clarified that the seeds of flowers are freely importable in terms of para 22 of the Import & Export Policy, 1992-93 read with Item No. 5(1) of the excepted list appearing below Item No.11 of para 156A of the Policy Book, 1992-97.
7. On 27th August, 1992, the petitioner wrote a letter to the respondent No. 3, Asstt. Collector of Customs (PAD), stating amongst others, that as desired by him the petitioners had received the clarification of the Joint Chief Controller of Imports & Exports and also requested the said respondent to refer the Notification No. 265/88-Cus., dated 28th September, 1988 (as amended from time to time and ultimately by Notification No. 45/92-Cus., dated 1st March, 1992) wherein it is specifically stated that no customs duty is leviable on import of vegetable and flower seeds.
8. On 28th August, 1992 from a communication of the Post Master. Middleton Row Post Office, the petitioner came to know that in respect of one post parcel No. 131660 of 6/92 the respondent No. 3, Assistant Collector of Customs (PAD) levied customs duty amounting to Rs. 28,878/-. Immediately on receipt of the said letter, the petitioner registered their protest and requested the said respondent by the letter dated 28th August, 1992 to release the said consignment immediately without any further delay.
9. The Directorate of Plant Protection Quarantine & Storage, Plant Quarantine & Fumigation Station at Garden Reach Road under the Ministry of Agriculture issued certificate dated 28th August, 1992 in respect of Post Parcel No. CA 9791/L of 7/92 to the respondent No. 3, Asstt. Collector of Customs (PAD) that the said parcel had been inspected and the same was recommended for release.
10. The respondent No. 3 issued a letter dated 5th September, 1992 to the petitioner informing that postal parcel consignment being No. 131660 of 6/92 was being returned for re-examination.
11. Thereafter, on 5th September, 1992, the petitioner addressed a letter to Mr. Tarun Roy/Member, Board of Revenue, Ministry of Finance apprising him of the difficulties faced by the petitioner regarding the importation of the flower seeds by postal parcel.
12. By a letter dated 8th September, 1992 addressed to the respondent No. 3, the petitioner clarified the legal position and reiterated the demand for the release of the aforesaid 3 consignments of flower seeds which were withheld by the respondent No. 3.
13. Since the said consignments of flower seeds were not released, the petitioner had to furnish a P.D. bond dated 10th September, 1992 to get the consignments of the flower seeds released on the basis of provisional assessment.
14. On 5th March, 1993, the impugned show cause notice was issued by the respondent No. 3 relating to the aforesaid 3 consignments of flower seeds even before completing the final assessment asking the petitioner to show cause why a sum of Rs. 2,44,942.35 which has been allegedly short-levied should not be paid by the petitioner.
15. At the hearing before me, Mr. Ashutosh Daw, learned Counsel appearing for the respondents has contended that unless the conditions laid down in Notification No. 265/88-Cus., dated 28th September, 1988 as amended, the duty has to be levied on the imported seeds unless a valid permit for such import is produced. Since the petitioner did not produce permit in Form ‘D’ the authorities were justified in issuing the impugned show cause notice. He has also submitted that the Customs Department is bound to follow the notification issued by the Customs Department and any other notification, statutory or otherwise cannot curtail the scope and effect of such notification.
16. On the other hand, the contention of Mr. Dutt, learned Advocate for the petitioner is that the notification relied on by the Customs authorities must be read in the context of the clarification issued by the concerned Ministry, that is Ministry of Agriculture on the question of production of permit for import of seeds and plants. The Ministry of Agriculture has clarified at the instance of the Customs Authorities that no permit is necessary for such importation if such import is made as accompanied baggage or through International Postal Channel. It is his contention that since the Ministry of Agriculture which is authorised to exempt permit for importation of such seeds and has, in fact, issued such notification on 20th January, 1992, the Customs authorities are bound to act on the basis of such notification. The Customs authorities cannot dismiss the recommendation and endorsement of DGTD and CCI & E. It is his contention that in a fiscal statute the provision must be strictly interpreted giving benefit of doubt if any, to the subject He has also contended that the impugned show cause notice in any event was premature in view of the provisions of Section 28 of the Customs Act, 1962. He has also contended that the impugned show cause notice is without jurisdiction, and on such the Writ Court can interfere.
17. I have considered the rival contentions. The Notification No. 265/88-Cus., dated 28th September, 1988 as amended provides that the Central Government, being satisfied that it is necessary in the public interest so to do exempted seeds of vegetables, flowers and ornament plants when imported to India for the purpose of sowing and planting from (a) the whole of the duty of customs leviable thereon which is specified in the said First Schedule and (b) whole of the additional duty of customs leviable thereon under Section 3 of the said Customs Tariff Act, 1975 :
Provided that the Importer –
(i) gives a declaration that such plan ting material is for the purpose of sowing or planting only, and (ii) produces a valid permit for import of such goods for sowing or planting, in Form ‘D’ specified in condition (3)(1) of Clause 3 of the Plants. Fruits and Seeds ( Regulation of Import into India) Order, 1989, issued under Sub-section (1) of Section 3 of the Destructive Insects and Pests Act, 1914 (2 of 1914).
18. In exercise of the powers conferred by Sub-section (1) of Section 3 of the Destructive Insects and Pests Act, 1914 (2 of 1914), and in supersession of Plants, Fruits and Seeds (Regulation of Import into India ) Order, 1989 for the purpose of prohibiting and regulating the import into India of agricultural articles mentioned in the said Order, the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 was promulgated. The said order is a statutory order. Paragraph 3(3) of the said order provides as follows :-
“8(i)The Competent Authority shall issue permit in Form ‘C’ for import of seeds and fruits for consumption and in Form ‘D’ for import of seeds and plants for sowing or planting, if he is satisfied that the applicant meets all the necessary conditions;
(ii) The issue of permit may be refused or withheld by the competent Authority after giving reasonable notice to the applicant and for reason to be recorded in writing;
(iii) The import permit issued under this clause shall be valid for a period of six months provided that the Competent Authority may, on request, extend the period of validity for a further period of six months, for reasons to be recorded in writing.”
The Form ‘C’ specified proforma of permit for import of fruits/seeds/ plants for consumption. The Form is as follows :-
"1. Permission is hereby granted ... ..."
(Name and address of the importer or his authorised agent) to import by air/sea/land the plants/fruits herein specified, grown or produced in...
from ...
(Name and address of the consignor)
through air/sea/port/land customs station
...
(name of Port/Station)
19. The Form 'D' specifies proforma of permit for import of seeds/ plants for sowing which is as follows :
20. Permission is hereby granted to ...
(Name and address of the importer or his authorised agent to import by air/ sea/land the plants/seeds herein specified grown or produced in ... from ...
(Name and address of the consignee)
through air/sea/port/land customs station ...
21. It may be mentioned that the 1984 Order contained similar provisions for production of import permit in Form ‘C’, Form ‘D’ as this case may be. That is why in the Customs Notification No. 265/88-Cus., dated 28th September, 1988, the conditions regarding the production of a valid permit in Form ‘D’ was included in terms of 1984 order.
22. It is also necessary to set out paragraph 3(9) of the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 which provides as follows:
“No consignment shall be imported unless accompanied by an Official Phytosanitary Certificate issued by the authorised officer of the country of origin of the consignment:
“Provided that cut flowers, garlands, bouquets, fruits and vegetables weighing less than two kilograms imported for personal consumption may be allowed to be imported without a phytosanitary certificate or an import permit.”
23. On 20th January, 1992, the Ministry of Agriculture has issued the following notification :-
” MINISTRY OF AGRICULTURE
(Department of Agriculture & Cooperation)
NOTIFICATION New Delhi, the 20th January, 1992.
S.O. 56(E) – In exercise of the powers conferred by Sub-section (1) of section 3 of Destructive Insects and Pests Act, 1914 (2 of 1914), the Central Government hereby makes the following amendment in the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989, namely :-
1. (1) This order may be called the Plants, Fruits and Seeds (Regulation of Import into India) Amendment Order, 1991.
(2) It shall come into force on the date of its publication in the Official Gazette.
2. In the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 in paragraph 3, in sub-paragraph (9), for the proviso, the following provisos shall be substituted, namely :-
“Provided that Plants, Fruits, Seeds and any other material of plant origin imported for consumption shall be allowed to be imported without an import permit.
Provided further that such material imported as accompanied baggage and through International Postal Channels shall be allowed to be imported without a Phytosanitary Certificate or an Import Permit.”
The said notification was published in the Official Gazette on 20th January, 1992.
24. One of the conditions in the Customs notification dated 28th September, 1988 is that the importer has to produce a valid permit for import of plants, and seeds for sowing or planting, in Form ‘D’. But, the said requirement has been dispensed with by the notification dated 20th January, 1992 of the Ministry of Agriculture being the competent authority for prescribing restriction on the import of such goods. The aforesaid condition for production valid permit for import of such goods. The aforesaid condition for production of valid permit for import was included in the Customs notification dated 28th September, 1988 in view of the condition imposed by the Ministry of Agriculture which deals with such import. Once the condition is removed or relaxed by the Ministry of Agriculture, the Customs authorities cannot ignore such relaxation and insist that a valid permit has to be produced from the Ministry of Agriculture. If the Ministry of Agriculture says to importer that no such permit would be necessary and which in fact has been said in this case, it is not known how the importer could still obtain a permit for production before the Customs Authorities.
25. On 15th June, 1992, the Ministry of Agriculture issued the following circular: –
"Circular Dated: 15-6-1992 Sub. : Relaxation of Import Permit (Form 'C') required as per Plants, Fruits & Seeds (Regulation of Import into India) Order 1989. All concerned are hereby informed that Ministry of Agriculture, Govt. of India, vide notification in Gazette of India have relaxed the condition regarding Import Permits in Forms 'C' & 'D' as detailed below.
1. Import Permit issued by this Office is hereinafter no longer required for the import of plants and materials meant for consumption, viz. Pulses, Cereals, log wood & Special etc. imported as cargo, however, Phytosanitary Certificate is essential,
2. Import Permit & Phytosanitary Certificates are no longer required for the import of plants & plant materials meant for consumption, or sowing/planting imported as accompanied baggage and through Postal Channel.
3. Import of plants and plant materials meant for sowing/planting imported as cargo requires both import permit and phytosanitary certificate.
However, other condition remains the same, i.e.
(i) Importers are required to obtain the PSC for the commodity imported for consumption from the country of origin & required to produce the same on arrival of consignment, alongwith the bill of entry.
(ii) Plant Quarantine Formalities are to be completed as per the provisions of PFG Order, 1989, before the consignments are taken out of the Port Area.
(iii) Before the consignments are recommended for release or otherwise to the Customs Department, the importers have to pay Plant Quarantine Inspection fee as being done presently.”
In view of the aforesaid circular read with the notification of the Ministry of Agriculture dated 20th January, 1992, the Customs authorities cannot insist on production of import permit in Form ‘D’.
26. Thereafter, on 26th August, 1992, the Jt. Chief Controller of Imports & Exports also issued a clarification which is to the following effect:
“Subject: Clarification of Import Policy on seeds of vegetable and flowers
Gentlemen,
With reference to your letter No. M-15 dated 25-8-1992 on the above subject, I am to inform you that ‘seeds of flowers’ is ‘freely importable’ in terms of para-22 of the Import & Export Policy, 1992-97, read with Item No. 5(i) of the excepted list, appearing below Item No. 11 of para 156A of the Policy Book, 1992-97.
Kindly acknowledge receipt.”
27. As I said that the requirement of production of valid permit in Form ‘D’ was a requirement of the Ministry of Agriculture dealing with plants and seeds. If that requirement has been relaxed or removed, the question of production of valid permit by the importer of plants & seeds cannot arise provided the conditions of such relaxation are fulfilled. It is nobody’s case that the petitioner, in this case, has not fulfilled the conditions imposed by the notification dated 20th January, 1992 issued by the Ministry of Agriculture. The seeds have been imported through the International Postal Channel and accordingly the question of production of any permit in Form ‘D’ is not required at all. That apart, the license is issued by the Jt. Chief Controller of Imports & Exports who has clarified that seeds of flower are freely importable in terms of para-22 of the Imports & Exports Policy and accordingly the question of obtaining the import license for such import cannot arise. In my view, when the concerned department of the Govt. of India which is competent to relax the conditions of import of seeds etc. issued a statutory notification, such notification cannot be ignored by any other department of Government which is concerned only to ensure that conditions imposed by the competent department of the Government under the relevant provisions of the statute have been complied with or not. They cannot insist that non-existing condition should be complied with by an importer.
28. It appears from the records that the Ministry of Agriculture wrote a letter to the Collector of Customs on 15th June, 1992 which is as follows :
“To
The Collector of Customs,
‘Customs House’,
15, Strand Road,
Calcutta-700001,
Kind Attention : Shri S.N. Ghosh, Asstt. Collector of Cutoms for Appraisement-I.
Subject: Relaxation of requirement of Import Permit in Form ‘C’.
Sir,
I am to state that Ministry of Agriculture, Government of India, vide notification issued in Gazette of India, S.O. 56(E), dated 20-1-1992 has relaxed certain provisions of PFS Order, 1989 as below : –
1. Plants, Fruits & Seeds or any other materials of plant origin meant for consumption imported as cargo shall be allowed without Import Permit in Form ‘C’ issued by this office but requirement of Phytosanitary Certificate and P.Q. For malities are essential.
2. All such material imported as accompanies baggage or through International Postal Channel for consumption, or sowing/planting shall be allowed without Import Permit and hytosanitary Certificate. 3. Plants, Fruits & Seeds or any other materials of plant origin if imported as cargo for sowing/planting shall require both Import Permit and Phytosanitary Certificate. However, other conditions, requirements and procedure remains the same, i.e.
(i) All the bills of entries pertaining to plant & plant materials imported shall continue to be processed and endorsed to this office for Plant Quarantine Inspection and realisation of Inspection fee as usual.
(ii) All the consignments of Plants, Fruits and Seeds imported through Postal Channel and as accompanied baggage shall also continue to be referred to Plant Quarantine formalities and realisation of fee before release.
All concerned may please be advised accordingly.
Yours faithfully,
(M.P. Misra)
Dy. Director (Entomology)”.
29. Upon receipt of the said letter, the Collector of Customs on 1st October, 1992 addressed a letter to the Director (Customs), Central Board of Excise & Customs, to the following effect: –
"Sir,
Sub : Exemption to specified planting material for sowing or planting under Notification No. 165/88-Cus., [265/88-Cus.] dt. 28-9-1988 - amendment of consideration reg.
Your attention is drawn to proviso clause (1) of the above notification, wherein the importer is to produce a valid permit for import of goods, viz. oil seeds, seeds of vegetables, flowers, plants etc. etc. for sowing or planting in Form ‘D’ specified in condition (3)(i) of clause 3 of the Plants, Fruits and Seeds (Regulation of Import into India) Order 1984, issued under Sub-section (i) of Section 3 of the Destructive Insects and Pests Act, 1914.
Ministry of Agriculture has since informed that all such materials imported as accompanied baggage or through International Postal Channel for consumption of sowing/planting shall be allowed without import permit and phytosanitary certificate (copy of the letter enclosed).
In view of the above, conditions of the aforesaid exemption notification may be considered for amendment to the aforesaid extent.”
30. From the said letter, it would be evident that the Customs authorities understood that no longer a permit was required in Form ‘C or in Form ‘D’ and accordingly the Collector rightly recommended for amendment of the said Notification dated 28-9-1988 No. 265/88-Cus. (wrongly typed in letter of the Collector as 165/88-Cus.)
31. It also appears from the -records that the Additional Collector of Customs issued an office circular on 25th June, 1992 to the following effect: –
Government of India Office of the Collector of Customs Customs House, Calcutta OFFICE CIRCULAR Subject : Implementation of Plant Quarantine Regulation, The Plants, Fruits and Seeds (Regulation of Import into India) Order 1989 - Relaxation of requirement of Import Permit in Form 'C'. Attention of Assessing Officers and others concerned is invited to office circular No. 1/90 dated 01-01-1990 and Office Circular F. No. S, 106-129/88A(G) dated 10-03-1992.
It has been intimated by the Directorate of Plant Protection-Quarantine and Storage that Ministry of Agriculture, Government of India, vide notification issued in Gazette of India S.0.56(E), dated 20-01-1992 has relaxed certain provisions of PFS Order, 1989 as reproduced below : –
1. Plants, Fruits & Seeds or any other material of plant origin meant for consumption imported as cargo shall be allowed without Import Permit in Form ‘C’ issued by this office but requirement of Phytosanitary Certificate and P.Q. Formalities are essential.
2. All such materials imported as accompanied baggage or through International Postal Channel for consumption, or sowing/planting shall be allowed without Import Permit and Phytosanitary Certificate.
3. Plants, Fruits & Seeds or any other materials of plant origin if imported as cargo for sowing/planting shall require both Import Permit and Phytosanitary Certificate.
However other conditions, requirements and procedure remain the same i.e.
(i) All the bill of entries pertaining to plant & plant materials imported shall continue to be processed and endorsed to this office for plant quarantine inspection fee as usual.
(ii) All the consignment of Plant & Fruits & Seeds imported through postal channel and as accompanied baggage shall also continue to be referred to Plant Quarantine formalities and realisation of fee before release.”
All concerned in assessment and clearance shall follow the directives scrupulously.
Dated, the 25th June, 1992. Sd/-
Customs House, Calcutta (K.N. Gupta)
F. No.-S 60-70/92A(G) Additional Collector of Customs,
Calcutta."
33. A contention was sought to be raised by the learned Advocate for the respondents that the said circular was with regard to import permit in Form ‘C’. This contention is not correct. Form ‘C’ is in respect of import of seeds and fruits for consumption and Form ‘D’ relates to import of seeds and plants for sowing or planting. This first para of the said circular relates to Form ‘C’ and the second para relates to both Forms ‘C’ & ‘D’.
34. From the facts and circumstances mentioned hereinbefore, it would ; be evident that the. Ministry of Agriculture issued the statutory notification giving exemption as regards the production of import permit in Form ‘D’. The Customs authorities in spite of the circular issued for guidance of the officers acted contrary to the said statutory notification of the Ministry of Agriculture dated 15th June, 1992 as well as the departmental circular dated 15th June, 1992. Even assuming that the Customs Department is bound by the Notification No. 265/88-Cus., dated 28-9-1988 the officers of the Department are as well bound to act in accordance with the departmental circular which was issued pursuant to the amendment of the Plants, Fruits, and Seeds (Regulation of Import into India) Order, 1989 and also the clarification made by Joint Chief Controller of Imports and Exports (ICCI & E). As a matter of fact, after the JCCI & E, made clarification that seeds of flowers are freely importable in terms of para-22 of the Import and Export Policy, 1992-97, the Collector of Customs directed on 31th August, 1992 that ‘it will be reasonable to release the seeds with Quarantine Certificate’. Thereafter, the question came with regrad to the exemption of duty in terms of the Notification No. 265/88-Cus., dated 28-9- 1988. The Customs authorities in spite of the aforesaid circular, and the statutory notifications of the Ministry of Agriculture still insisted that the i exemption from duty in terms of the Customs notification will not be granted unless valid permit in Form ‘D’ is obtained from the Ministry of Agriculture. The valid permit has to be obtained in Form ‘D’ in terms of the Plants, Fruits and Seeds (Regulation of Import into India) Order, 1984 as mentioned in the Customs Notification No. 265/88-Cus., dated 28-9-1988. As I have already indicated that the 1984 order had been superseded by the 1989 order and accordingly the question of any production of permit in terms of 1984 order does not and cannot arise at all, the Customs Authorities cannot act in terms of 1984 order which was repealed by the 1989 order. The amendment in Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 if not imported into the Customs Notification also, would render the Customs Notification i unworkable and of no effect.
35. Even assuming that there is any inconsistency between the two notifications, one issued by the Customs Authorities on 28-9-1988 and the other by the Ministry of Agriculture on 15-6-1992, both of them being statutory notifications should be harmoniously construed. As I have already said that the import of seeds is regulated by the Ministry of Agriculture and accordingly the relaxation of the condition granted by the Ministry of Agriculture will prevail over the notification of the Customs Authorities as the Customs Authorities do not have any independent power to curtail the import unless such curtailment is warranted by the import policy or by the modification of the concerned Ministry regulating the import of such materials.
36 There is another aspect of the matter as indicated; the Plants, Fruits and Seeds (Regulation of Import into India) Order was issued by the Central Government in exercise of the powers conferred by Sub-section . (1) of Section 3 of the Destructive Insects & Pests Act, 1914 which provides that notification issued under Section 3 of the said Act would operate as if it had been issued under Section 19 of the Sea Customs Act, 1878 corresponding to Section. 11 of the Customs Act, 1962. Section 11 provides that the Central Government by notification in the Official Gazette may prohibit the import or export of goods of any specific description. The Plants, Fruits and Seeds (Regulation of Import into India) Order having been issued under Section 3 of the Destructive Insects and Pests Act, 1914 will have the force of the notification issued under Section 11 of the Customs Act, 1962 and accordingly any amendments made in such notification by the Central Government shall also be binding on the Customs Authorities. The Customs Authorities cannnot take the plea that such notification has not been issued by the Customs Department. Once the notifications are issued whether under the Customs Act, 1962 or under The Destructive Insects & Pests Act, 1914 by the Central Government, the Customs Authorities are bound to comply with the notification issued by the Central Government dispensing with the production of permit in certain cases of import of Plants/Seeds etc. through International Postal Channel or as accompanied baggage.
37. That apart, if there is any doubt as to the interpretation of the fiscal statute, the court shall always lean in favour of an interpretation which will lighten the burden of tax of the litigant. In this connection, reference may be made to the decision of the Supreme Court in Diwan Brothers v. Central Bank of India, . There the Supreme Court observed as follows:
“It is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court-fee on the litigant. Thus, where an adjudication given by a Tribunal could fall within two provisions of the Court Fees Act, one of which has onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant. In A.V. Fernandez v. State of Kerala, , while interpreting the provisions of a fiscal statute viz. the Tranvancore-Cochin General Sales Tax Act, this Court observed as follows: –
“It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the Strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter.”
Similarly in State of Maharashtra v. Mishri Lal Tarachand, , while interpreting some of the provisions of the Bombay Court-fees Act, Raghubar Dyal, J., speaking for the Court observed as follows : –
“The Act is a taxing statute and its provisions therefore, have to be construed strictly, in favour of the subject – litigant.”
“These observations manifestly show that the courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant. The principles deducible from the decisions referred to above are well established and admit of no doubt,”
38. There is yet another aspect of the matter. Section 11A of the Central Excises and Salt Act, 1944 is in pari materia with Section 28 of the Customs Act, 1962. Therefore, the question of short levy will arise only on the adjustment of duty and not earlier until the assessment is finalised, and no show cause notice under Section 28 of the Customs Act, 1962 can be issued. Therefore, the condition precedent for exercise of power under Section 28 is absent in the instant case. A provisional assessment has been made. Final assessment is yet to be made. The show cause notice is, therefore, in any event, premature and as such without jurisdiction. Reference may be made, in this connection to the decision in Nayek Paper Industries Ltd. v. Union of India, :-
“In this case, the duty of excise was provisionally assessed as stated hereinabove. There has been no final assessment. Adjustment of duty under Section 11A(3)(ii) would be only after the approval of the classification list when the final assessment of duty would take place. The Central Excise Officer could only thereafter serve a notice on the person chargeable with the differential duty. In other words, the cause of action under Section 11A would arise only from the date of adjustment of duty and not earlier. The case relied upon by the petitioner also supports this view although it must be pointed out that the decision of the Bombay High Court in Godrej and Boyce Mfg. Co. Pvt. Ltd.
) was in an interlocutory matter. Nevertheless, the reasoning in the said judgment is apposite and is as under:
It will be seen that Sub-section (1) of Section 11A, which invests the officer with the power to issue a show cause notice invests him with the power to do so within a stated time ‘from the relevant date’. The relevant date has come and gone is, therefore, a sine quoa non of the valid exercise of the power conferred by Sub-section . (1) the definition of relevant date appropriate to the present case is contained in Sub-section (3)(ii)(b) of Section 11A. Where, as here excise has been provisionally assessed, it is the date of adjustment of duty after final adjustment. Prima facie, there is, therefore, substance in the respondents’ contention that the relevant date has not come and that, consequently the officer did not have the power to issue the show cause notice.”
The respondent authorities are themselves of the view that until the finalisation of the assessment, no show cause notice under Section 11A of the Act could be issued. Reference may be made to the decision of the Tribunal in the case of Vijay Tank & Vessels Pvt. Ltd. (supra), in which the Tribunal stated :
‘We would also like to note that while the RT. 12 assessment was itself made on 31-12-1985 show cause notice was issued even prior to that on 4-2-1985. We are at a loss to understand how a show cause notice could be issued under law even before the finalisation of the assessment on the RT 12.’
It was submitted on behalf of the petitioner (which submission is not disputed by the respondents that the respondents have not finally approved the classification list with regard to Chromo Board till today. Therefore, the condition precedent to the exercise of power under Section 11A(1) of the Act is absent. For the reasons aforesaid, I must uphold the first contention of petitioner and hold that the show cause notice was issued without jurisdiction.”
39. Reference may also be made to the decision of the Union of India v. Godrej & Boyce Mfg. Co. Ltd., 1989 (44) E.L.T. 3 (Bom.). There the Bombay High Court held as follows :
“We are of the view that an examination of the provision by this Court is required. It will be seen that Sub-section (1) of Section 11A, which invests the officer with the power to issue a show cause notice, invests him with the power to do so within a stated time, ‘from the relevant date’. That the relevant date has come and gone is, therefore, a sine qua non of the valid exercise of the power conferred by Sub-section 1. The definition of ‘relevant date’ appropriate to the instant case is contained in Sub-section (3)(ii)(b) of Section 11A. Where, as here, excise duty has been provisionally assessed, it is the date of adjustment of duty after final assessment. Prima facie, there is, therefore, substance in the respondents’ contention that the relevant date has not come and that, consequently the officer did not have the power to issue the show cause notice. This was the basis upon which the learned single Judge stayed further proceedings upon the show cause notice and we are inclined to agree with him”.
40. For the reasons aforesaid, this application must be allowed. The Customs authorities cannot impose any duty on the subject goods in view of the statutory notification issued by the Ministry of Agriculture relaxing the condition of production of valid permit in Form ‘D’. It is not the case that if the permit in Form ‘D’ is obtained even then the petitioner has to pay duty on the import of the seeds. The only contention as I have noted is with regard to the non-production of the permit in Form ‘D’ in terms of the Customs exemption Notification No. 265/88-Cus., dated 28th September, 1988.
41. A contention has been raised by Mr. Daw, learned Advocate for the respondents, that the petitioner should have replied to the show-cause notice and submitted to the jurisdiction of the Customs authorities. If the petitioner is aggrieved by the decision of the Adjudicating Authority, the petitioner will be at liberty to move the appropriate forum.
The contention of Mr. Dutt, Learned Advocate on behalf of the petitioner is that had the reply to the impugned show-cause notice been given, the Court would not have entertained the writ application and accordingly no reply was given.
42. I do not find any substance in the contentions raised by the learned Advocates appearing for the parties. If the show cause notice is without jurisdiction, the Writ Court can interfere irrespective of the fact whether the importer has replied to the show cause notice or not. Mere submission of a reply to the statutory Authority against the show cause notice does not by itself take away the right of a citizen to challenge such show cause notice, if such show-cause notice is without jurisdiction. In this case, as I have already indicated that no duty is leviable on the imported seeds subject to the compliance with the Customs Exemption Notification No. 265/88-Cus., dated 28th September, 1988. The show cause notice was issued on the ground that one of the conditions regarding the production of valid permit in terms of the said notification was not complied with. The only dispute is, therefore, that whether such conditions is still applicable to the import of such seeds. In view of the notification of the Ministry of Agriculture, the Customs authorities could not have insisted on production of a permit in Form ‘D’ and accordingly, their action in proceeding to levy duty by the impugned show cause notice is on the face of it without jurisdiction.
43. In the result, this application succeeds. The impugned show cause notice and the proceedings initiated thereunder are quashed. The Bond furnished by the petitioner will stand cancelled and discharged.
44. There will be no order as to costs.