9911796707
TMI Blog1987 (4) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, in pursuance of certain changes in its sugar policy, issued three Notification Nos. 313, 314 and 315 of 1979 all, dated 17-12-1979. The effect of these notifications was that the tariff value of free sale sugar was fixed at Rs. 307/- per quintal and the rate of basic excise duty on such sugar was fixed at 15.5% ad valorem, the special excise duty remaining at 5% of the basic excise duty. The additional excise duty went up to 7.5% ad valorem. However, the aforesaid quantity of 2,173 quintals of sugar had been cleared applying the tariff value and the rates of duty as obtaining prior to the issue of the above said notification. As a result, the Department alleged that there was a short payment of Rs. 20,697.83p. on account of additional excise duty. A show cause notice was issued to the assessee and, on adjudication, the demand was confirmed by the Assistant Collector by his order, dated 24-3-1982. In appeal, the Appellate Collector by his order, dated 24-7-1982, held that the Assistant Collector should have taken into account not only the increase in the rate of additional duty but also made due allowance for the reduction in the basic excise duty (and the consequent modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision would be subject to the condition of publication of the notifications in the official gazette as enjoined by Section 38 of the Central Excises and Salt Act, 1944 and such publication could be said to have taken place only on 18-12-1979. 6. Shri K.C. Sachar, D.R. for the Revenue, on the other hand contended that the notifications specifically provided for their coming into effect on 17-12-1979. As such they had to be given effect to from that date and from no other date. 7. We have carefully considered the submissions of both sides. The issue is whether the changes effected under the three Notification Nos, 313, 314 and 315 of 1979, all dated 17-12-1979 should be applied with reference to the removals effected on 17-12-1979 even if the Gazette notifications had been issued from the press on 18-12-1979 only or later. That is to say, the issue is as to the date or time when the notifications should be deemed to have come into operation. I may note that all the three notifications read that they shall come into force on the 17th day of December, 1979. 8. So far as any statute enacted by Parliament is concerned it can have retrospective operation, provided it is specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be held to have come into effect on 17-12-1979, since the notifications express the date of commencement as 17-12-1979 and, if so, the time of commencement should be midnight of 16/17 December, 1979 in the manner above mentioned. 10. The question whether the provision contained in Section 5(3) of the General Clauses Act could be applicable to the notifications issued under an Act had been considered in the case of Maloji Rao v. Matkar [AIR 1953 Madhya Bharat 245 Full Bench ]. It had been held that the said provision is applicable only in case of Acts of Parliament or Regulations and not in respect of notifications. 11. As to when a notification should be held to have come into force, irrespective of the provision in the notification itself as to when it shall become operative, the question has been the subject matter of debate in several decisions of High Courts. This question had come up before the Andhra Pradesh High Court in the case of Narayan Reddy v. State of Andhra Pradesh [Vol. 33 (1975) STC 319] and Yernmigenur Spinning Mills Ltd. v. State of Andhra Pradesh [Vol. 37 (1976) S.T.C. 319. In the first case the rate of tax was enhanced by a notification, dated 1-12-1966 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 269D of the Income Tax Act, 1961. The Court held that the notice had not been published in the Gazette within the 9 months from the date of registration of the sale deed, which was 29-12-1973. It was pointed out that though the notice was, dated 19th August, 1974 the Gazette in which it was published was not available to the public before 14th October, 1974 and hence the competent authority under Section 269D did not acquire jurisdiction to continue the proceedings as the proceedings had not commenced within the statutory period. 14. We may further note that recently the same matter came up before the Gujarat High Court in the case of General Fibre Dealers Ltd. v. Union of India [1986 (26) E.L.T. 494]. The Gujarat High Court distinguished the decision of the Allahabad High Court cited supra. But the following observations in paragraph 28 thereof are relevant :- In the instant case it is not Mr. Gupta s contention that the impugned notification, dated 30th March, 1981 did not become operative at the time of the clearance of the goods on account of its not having been actually published in the official gazette on that very date and that being so, it is immaterial wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification itself, as to its coming into operation, or the date given for the gazette in which the notification is published, it is the actual date when the gazette containing the notification is made available to the public that would be the date when the notification would come into operation. 18. It would therefore, be necessary in the present case also to go into the question as to on what date the gazette was published, that is, it was printed and issued, in order to ascertain the date when the notifications would have come into effect. If that date is ascertained to be later than 17-12-1979 the effect of holding that the notifications came into effect on 17-12-1979 itself would be to claim retrospective operation thereof. As earlier mentioned, the Supreme Court has itself held that notifications issued under Central Excises and Salt Act cannot have such retrospective operation. 19. The question may also arise whether when the notifications themselves provided that they would come into effect on 17-12-1979 it would be open to this Tribunal functioning under the Act to hold otherwise. It appears to us that while it may not be open to this Tribunal (functioning under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jarat High Court in Commissioner of Income Tax v. Shilaben Kanchan Lal Rana [1980 (124) I.T.R. 420] held with reference to Section 269D(1) of the Income Tax Act, 1961 (which lays down : The Competent Authority shall initiate proceedings for the acquisition, under this Chapter, of any immoveable property referred in Section 269C by notice to the effect published in the official gazette: ) that the proceedings could be initiated by the Competent authority only by a notice published in the official gazette. There is, however, no requirement that the gazette in which the notice is published is made available to the concerned persons within the stipulated period. In that case, the competent authority initiated acquisition proceedings by a notice on 18-5-1974 which was published in the official gazette on 31-8-1974. It was held by the Court that the acquisition order eventually passed could not be treated as invalid on the ground that the gazette was not available to the interested parties within time. The contention that till the gazette in which the notice was said to have been published was made available and known to the persons concerned, there was no publication, was rejected by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case [1978 E.L.T. (J 375)], purported in so many words to come into effect from a date prior to the date of the notification itself. The latter is not the case in the present instance and, apart from the appellant s say so, there is no evidence herein to show that the subject notifications were printed/published on a date subsequent to 17-12-1979. Nothing prevented the appellants from securing evidence having a bearing on this aspect as the Asia Tobacco Co. did in the case reported in 1984 (18) E.L.T. 152. The present is the second appeal stage and in the original adjudication as well as the first appeal stage, no evidence on the point appears to have been led by the appellants. Nor even before us at this the second appeal stage. In my view, the present is not a case, therefore, in which a factual investigation should be ordered by way of a remand. 27. The notifications in question provide in so many words that they shall take effect from the 17th December, 1979. This Tribunal, an authority functioning under the provisions of the statute, cannot be called upon to apply the provisions of these notifications to the assessments made in the appellant s case as if the aforesaid provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification should be held to be effective, and holding that such date of effect cannot be prior to the date on which it is shown to be made available to the public, I come to the other aspect as to whether in a case where the notification itself provides a prior date, that is to say prior to the date either of its being made public or, say prior even to the date of notification, the Tribunal is an appropriate forum for challenging the .provisions of such a notification. I am quite clear in my mind that the Tribunal is constituted only for interpretation of Acts, Rules as well as notifications issued in pursuance thereof. It is not vested with any power to go into questions of the vires of the statutory provisions or the Rules or the notifications. I don t think we can take the view that the Tribunal is competent in this case merely because the determination date of effect of notification is a short or simple matter which does not call into question otherwise the relevant provisions of the notification. The holding of effective date of the notification to be other than that specifically provided in the notification in any such case may negate its entire purpose and may result in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l clue in this respect can be found in Section 38(1) of the Central Excises and Salt Act which provides that all the notifications issued shall be published in the official gazette. In view of these provisions the publication of a notification in the Gazette must be preceded by issue of that notification. Since the notifications were issued on 17-12-1979 and were effective from 17-12-1979, there is no question of issue of a notification with retrospective effect. It has been a settled proposition that a Tribunal being a creation of statute cannot look into the vires of the statutory provisions ; But recently, the Supreme Court in the case of J.B. Chopra and Others v. Union of India [1987 (28) E.L.T. 3 (S.C.)], has held that a question relating to the validity of laws can be considered by the Administrative Tribunal and it can strike down a notification. The Administrative Tribunal in relation to which this pronouncement was made by the Supreme Court is not a Tribunal created under the constitution, but is a Tribunal created by a statute i.e. Administrative Tribunal Act, 1985. The Special Benches of CEGAT are at par with the Benches of Administrative Tribunal as appeal against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
