1994 (3) TMI 209 - Commissioner - Central Excise

Summary

Issues:
- Refund claim rejection based on Notification No. 284/90 dated 15-12-1990
- Date of publication in the Official Gazette for notification effectiveness
- Burden of proof on the appellants regarding Gazette notification availability

Analysis:
The appeal was filed against the rejection of a refund claim by M/s. Ghatge Patil Industries Ltd. regarding the payment of differential Auxiliary duty amounting to Rs. 2,06,857. The dispute arose due to the increase in the Auxiliary duty rate from 5% to 25% under Notification No. 284/90 dated 15-12-1990. The appellants argued that the notification only becomes effective from the date it is published in the Official Gazette and made available to the public. They claimed that since the Gazette notification was not available until the first week of January 1991, their duty refund should be granted. However, the Assistant Collector rejected the claim, citing a decision of the Calcutta High Court stating that the date of publication in the Official Gazette is the date from which the notification becomes operative.

During the hearing, the appellants relied on various judgments emphasizing that a Gazette notification is not effective until it is made available to the public. They pointed out that they could not ascertain the exact date of availability as the concerned authorities did not provide a clear response. The appellants referenced a case law where it was held that the burden of proving the notification's effective date lies with the department, not the appellants. Despite the appellants admitting that the notification was published in the Excise Law Times on 1st January 1991, they argued that the burden of proof should not be shifted to them.

The presiding officer carefully considered the submissions and noted that while previous judgments supported the notion that the Gazette notification's effectiveness is tied to public availability, the appellants failed to provide a specific date of availability. As the burden of proof rested with the appellants for a refund claim, the officer concluded that in the absence of concrete evidence regarding the date of public availability, it must be presumed that the notification was available to the public from the date of its issue. Therefore, the appeal was deemed to lack merit and was rejected accordingly.