Can State Govt Interfere With CBI's Power To Investigate Central Govt. Officials When The Offence Committed In State's Territory? SC To Hear On Sept 7

Following the terror attack at Pulwama on 14th February 2019, the Government of India published a Notification on 16.02.2019 in exercise of powers under Section 8A(1) of the Customs Tariff Act, 1975. The notification introduced a tariff entry by which all goods originating in or exported from the Islamic Republic of Pakistan were subjected to an enhanced customs duty of 200%. The precise time at which the notification was uploaded on the e-Gazette was 20:46:58 hours.

Allowing a batch of writ petitions, the High Court of Punjab and Haryana held that since the importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of "self assessment" before the notification enhancing the rate of duty to 200 per cent was issued and uploaded, the enhanced rate of duty was not attracted.

In appeal before the Apex Court, the Centre contended that irrespective of the point of time when a notification has been uploaded or published in the e-Gazette, the rate of duty leviable on imported goods cleared for home consumption is, by a legal fiction, the rate prevalent on the date of the presentation of the bill of entry.

One of the issues considered by the bench of Justices D. Y. Chandrachud, Indu Malhotra and K. M. Joseph was whether the notification that was issued by the Central government under Section 8A(1) at 20:46:58 hours on 16 February 2019 took effect commencing from 0000 hours on that day? Referring to various judgments, General Clauses Act and Information Technology Act, Justice Chandrachud, on behalf of himself and Justice Malhotra, observed:

"With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Notification 5/2019, which is akin to the exercise of delegated legislative power, under the emergency power to notify and revise tariff duty under Section 8A of the Customs Tariff Act, 1975, cannot operate retrospectively, unless authorized by statute. In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on 16 February 2019."

Justice Joseph wrote a separate but concurring opinion in which he said that the interpretation based on time of publication is in harmony with a view that accords respect for vested rights.

On Tuesday, ASG Aman Lekhi, for the CBI, told that this judgment is not relevant for his arguments and that his submissions are slightly different from what the Supreme Court has held till now. Senior Advocate Siddharth Luthra, for the state of West Bengal, told the bench that he would be relying on the said judgment.

The bench of Justices Kaul and Gupta granted time to the petitioners, the CBI and the State of West Bengal to file a short synopsis of 3 pages each, factoring in the aforesaid judgment. The matter is now posted to September 7 at 2 PM.