1998 (7) TMI 221 - AT - Central Excise

Summary

Issues:
Date of effect of Notification under Section 38 of the Central Excise Act, 1944 - Printing in Official Gazette vs. availability to the public.

Analysis:
The case involved a dispute regarding the effective date of a Notification issued under the Central Excise Act, 1944. The Notification in question, 161/90, amended the duty rates for polyester filament yarn (PFY) and polyester staple fibre (PSF). The appellants argued that the Notification should be deemed effective only when made available to the public, not merely on the date of printing in the Official Gazette. They contended that the Gazette containing the Notification was sent for public sale on 12-1-1991, after the period in dispute (15-12-1990 to 17-12-1990). The Department, however, claimed that wide publicity through newspapers, TV, and radio had already informed the public about the changes in duty rates.

The appellants relied on Supreme Court decisions emphasizing that a Notification is considered passed when made known to the public, not just when printed in the Gazette. They presented evidence of newspaper cuttings showing publication dates after the disputed period. The Department argued that communication through various media before the Gazette publication was sufficient, citing past judgments supporting this view.

After hearing both sides, the Tribunal acknowledged the relevance of communication in determining the effective date of a Notification. While recognizing the previous judgments cited by the Department, the Tribunal noted the appellants' challenge to the claimed publicity through newspapers, TV, and radio. Due to the factual dispute regarding the communication of duty rate changes to the public, the Tribunal set aside the previous order and remanded the case to the lower appellate authority for verification. The Commissioner (Appeals) was tasked with investigating the methods of communication during the relevant period and making a decision within three months from the Tribunal's order date.

Ultimately, the appeal was allowed by way of remand, providing an opportunity for further examination of the communication issue to determine the effective date of the Notification in question.