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TMI Blog1994 (11) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty applicable to cigarettes, they were directed to pay the enhanced duties from 25-3-1985. The appellants effected clearances on 25-3-1985 in accordance with the effective rates laid down under Notification 201/83, which, as already stated above, stood rescinded by a notification of that date. Likewise by Notifications 201/85 and 203/85 both dated 2-9-1985, changes were effected in the rate structure applicable to cigarettes. By Notification 202/85, dated 2-9-1985, earlier notification prescribing the effective rate was rescinded, requiring the appellants to pay the enhanced duty on 2-9-1985. However, the appellants effected clearances of cigarettes on 2-9-1985 at the rates prescribed in the rescinded notification. It is the contention of the appellants that on both the dates the changes effected by the Notification on 25-3-1985 and 2-9-1985 were not made known to the Public and hence the revised notifications cannot be said to be operative on those dates, The appellants procured confirmation from the Assistant Controller of the Government Press to the effect that in the case of Notification dated 25-3-1985, the Gazette containing the notifications was made available for publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeal. (ii) Referring to Section 5(3) of the General Clauses Act, he points out that as per this section, unless the contrary is expressed, a Central Act must be construed to come into operation immediately on the expiry of the day preceding its commencement. However, this provision is not available for subordinate legislation like Rules and notifications. The time, from which it is effective, is a matter of proof of its publication. There is no specific provision in the law for giving effect to such notifications from the expiry of the day preceding the date of printing. (iii) There is a clear distinction between printing and publishing a notification. In this context, he refers to the decision in the case of Jayalakshmi Talkies reported in AIR 1982 Andhra Pradesh 174 and 1899 (1-CA) Chancery Division 884 to bring out the distinction between printing and publishing, as has been laid down in those cases. He would therefore plead that the lower authorities are not correct in holding that the notification is effective from the date of issue or date of printing, unless it is simultaneously published. Section 38 of the Central Excise Act also stipulates publishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue in the Wirex Metal Works case. He also refers to the decision of the Supreme Court in the case of D.B. Raju v. H.J, Kantha Raj & Others reported in (1990) 4 Supreme Court Cases 178 to point out that it must be necessary for the subordinate legislation to become effective, it is made known to the Public . (vii) In fine , he would urge that notwithstanding the observations of Supreme Court in the Pankaj Jain Agencies case, the view taken by this Bench in Century Enka continues to hold good. Hence he would plead for allowing the appeal. 3.3 Shri Krishnamurthy, the ld. J.D.R., on behalf of the Reveune, makes the following submissions : (i) The case of Century Enka was decided by this Bench, where the contra decision in favour of the revenue held by the same Bombay High Court in the case of Chemifine and Another reported in 1994 (72) E.L.T. 15 (Bom.) = 1994 (52) ECR 368 (Bombay) and the judgment of the Supreme Court in the case of Pankaj Jain Agencies case were not available. In view of the subsequent decision of the Bombay High Court , the Tribunal have accepted the Reference Application moved by the Revenue in the case of Century Enka, agreeing that there could be an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Bombay, once when it is published. Here the notification has been published through press release and announced in the Radio. Hence the ratio of the decision in Pankaj Jain case would stand attracted. Moreover, as per the news item appearing in the E.C.R. vide 1993 (44) ECR page 493, the Supreme Court have admitted the appeals from the Revenue on the very same issue and granted stay of operation of the High Court's order favouring the assessees. The Supreme Court would not have granted stay, if they were not prima facie convinced of the case of revenue on this issue. Hence, rejection of Civil Appeal in the case of Wirex Metal Works, without assigning any reasons, could be on account of some other reason. He would therefore, plead for rejection of the appeal based on the ratio of the decision of the Supreme Court in Pankaj Jain case. 4.1 Before considering the pros and cons of the above arguments, I would like to set out the theory of natural justice applicable in the case of subordinate legislation in general and particularly in the case of notifications issued in taxation matters. The maxim that ignorance of law does not excuse any subject represents the working hypothes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ethod of making the Gazette available to the public. The Supreme Court in the case of D.B. Raju have set out that the subordinate legislation must be published or promulgated in some suitable manner, which is my view could encompass all media of audio/visual publicity through news papers, Radio/ TV coverage. Hence, I am of the view that depending on the nature of the subordinate legislation "the mode of publication can vary - but there must be reasonable publication of some sort." 4.2 Now coming to the exemption notification issued under the Customs and Central Excise laws, I find that the Parliament, having fixed the statutory rates of duty by passing the Finance Bills every year, have entered the powers to the Central Government to grant exemptions in the public interest, enabling the Government to fix the effective rates either unconditionally or subject to such conditions as may be necessary. The legal requirement is that they must be published in the official Gazette. In the field of indirect taxation, even the changes brought out in the Statutory rates every year through Finance Bills are not announced in advance, but are kept a closely guarded secret for obvious reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable publication of some sort and the notification can be said to have been published in suitable manner on that date. Going by the principle laid down in the case of D.B. Raju, decision to grant the exemption made in an unobtrusive manner in the Chambers of the Finance Ministry, can be said to have been published by issuing a press release for audio/ visual publicity, simultaneously with the release of the authenticated copy of the Notification to the Govt. press for publication . Hence, I would find that in the case of the present appellants, the facts go to indicate that the notifications in question were published on the dates bearing the dates in the Gazette Notification. 5.2 But the ld. Sr. Counsel pleads that news broadcast was only in the evening and clearances had taken place before the evening news. Hence, he pleads that the Notifications were not published at the time of clearances of the goods. I am not persuaded to accept this line of argument. In the case of parliamentary enactments, the General Clauses Act prescribes the effective date for statutory enactment. Even if I accept that the General Clauses Act may not be available for subordinate legislation, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applying the above two decisions of the Bombay High Court, since the issue has arisen in the jurisdiction of superintendence of the High Court of Bombay. All the same, both of us have agreed to allow the Reference Application moved by the Revenue against the above decision. It was brought to our notice that Bombay High Court in a subsequent case of Chemifine v. Union of India - 1994 (72) E.L.T. 15 (Bom.) = 1994 (52) ECR 368 (Bom.) have dissented from the earlier view taken by them in the case of Swati Chemicals and also from the view taken by the Madras High Court in Asia Tobacco - 1984 (18) E.L.T. 152 (Mad.) = 1985 ECR 1637 (Mad.). This judgment was not available before us at the time of passing the order in the case of Century Enka. Hence, we felt that there is definitely a point of law involved and allowed the reference made by the Revenue. Though in the aforesaid order of Century Enka separate orders were recorded by us setting out our views on the issue, we are now unanimous that the point of law is still not settled and would call for a reference. It was however pleaded by the ld. Sr. Counsel that even if a reference application is allowed, the ratio of the decision would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt after considering their decisions in Harla v. State of Rajasthan and also the case of State of Maharashtra v. Mayor Hans George rejected the contention that notification should be made available to the Public at Bombay, when it is promulgated and published in an acceptable manner . In the present case before us, I find that their contention is that during the day, when clearances were effected, there was no news broadcast of All India Radio. Only in the evening news, it was broadcast. There in no contention raised before us that it was not released to the press in Delhi. The fact that it was broadcast on the same day of notification, indicates that press release has been simultaneous, making the provisions of the notification public. If it did not reach Bombay due to some communication gap or on account of priority in News reporting, it cannot be held that notification was not made public nor can it be accepted that the Notification was kept wrapped up in the Chamber of the Minister or his official without making it public. The case of Pankaj Jain decided by the Supreme Court seems to negative the principle laid down in Asia Tobacco and G.T.C. Industries that only date of releas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the notification, notification is to be deemed as published on that date. There is no need for waiting for the sweet will of the Controller of Press to send the copies of the Gazette to bookstalls in Delhi/Bombay or the other places. 7. In the result, the appeal is dismissed. Sd./- (R. Jayaraman) Dated 9-11-1994 Member (T) 8. [Order per : P.K Desai, Member (J)]. - I have the privilege of going through the reasonings adopted, observations made, the conclusions drawn and the order proposed by my learned brother Mr. R. Jayaraman. 9. With the factual position not under any dispute, the short issue, though with larger magnitude and significant importance, that has come up for determination, is, when can the notification issued under the powers vested in the Government under Rule 8 of the Central Excise Rules (since repealed on introduction of Section 5A in the Central Excises and Salt Act, 1944 containing identical provisions), be taken to have been implemented. Whether on and from the date it bears or on and from the date the Gazette in which the same is published bears or on and from the date the Gazette is put on the stand and made available to the public. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific date, for implementation, or to bring the same conventionally known as the case law and neither of them could be ignored or overlooked or discarded. The case law, which generally comes by way of interpretation of the statutory law, if and when the same is ambiguous or is capable of more than one interpretation, and such a case law would hold good, till the same is altered by due process provided therefor. 14. An issue similar to the one here, had come up before this Bench in Century Enka v. Collector of Customs, 1994 (69) E.L.T. 44 where both of us concurred on the final order, but held slightly different views which have been duly expressed in the said order itself and which has been duly referred to by brother Jayaraman in the order as proposed by him. My view was that with the words "by notification in the official Gazette" used in Section 25 of the Customs Act, 1962 [the provisions of Rule 8 of the Central Excise Rules, 1944 (since repealed) and Section 5A of the Central Excises and Salt Act, 1944, are identical] the mode of publication was statutorily prescribed and the same had to be adhered to, and with plethora of judgments from judicial forum and orders fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in Union of India v. Asia Tobacco Co. Ltd., 1990 (50) E.L.T. 29 (Mad.). Series of orderes passed by various Benches of this Tribunal also, take the same view. 17. In the judgments referred to above, as also in the subsequent judgments of the Supreme Court in Re : Pankaj Jain Agencies (supra) and of Bombay High Court in Re : Chemifine and Another (supra) it has been an accepted proposition that for the purpose of implementing any notification, publication thereof is essential. It may also be noted that in none of the aforequoted decisions relied upon in our order in Re : Century Enka (supra), the issue as to whether publication by any other recognised mode could suffice, has been considered. 18. Though the appellants here have categorically stated that they have acted on the announcement made in the All India Radio, and it is not their intention to claim any refund of duty paid for the period when the Gazette containing the said notification was placed on the stand, the principal contention raised by them is whether the date of pbulication of the Gazette should be the material date. 19. What therefore requires to be considered is whether, the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the said judgment has not deviated from the earlier stand. Further, their Lordships have referred to, with approval, the earlier judgments in Harla v. State of Rajasthan (supra) and B.K. Srinivasan v. State of Karnataka (also supra). In Harla v. State of Rajasthan, the said Court have inter alia, held : "Natural justice requires that before a law can become operative, it must be promulgated or published. It must be broadcast in some recognised way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with exercise of due and reasonable deligence." In B.K. Srinivasan v. State of Karnataka (supra), the concluding observation is : "It is therefore necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will take effect from the date of such publication or promulgation." With the observation of the Supreme Court in the aforesaid two judgments that publication and making the same known to the public is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd even otherwise not providing any finding on the issues poised hereinabove, coupled with series of decisions from various Special and Regional Benches of the Tribunal taking a view that the date on which the Gazette containing the notification is published, is the date from which the notification becomes effective, it is not possible for me to prima facie conclude that my view in Re : Century Enka (supra) has to be discarded as de hors the ratio of the Supreme Court in Re : Pankaj Jain Agencies. 23. The approach adopted by brother Jayaram, may be on account of practical aspects, but in view of the statutory provisions, for which the probable interpretations as given hereinabove, and which gets supported by several judgments from various High Courts and majority of the Benches of the Tribunal, and which cannot be discarded except for cogent reasons, it is not possible to endorse the same. Actually a reference to the Supreme Court alone can provide a correct solution, but such an order at this stage being not within our powers, I hold that the Larger Bench should examine the issue for appropriate determination. 24. Alternate submission of Mr. Nariman, that even assuming ..... X X X X Extracts X X X X X X X X Extracts X X X X
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