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TMI Blog1996 (6) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, dated 4-8-1983. On the same day i.e. 25-3-1985, two Notification Nos. 100/85 and 105/85 were issued by the Government of India imposing a Special Excise Duty for the first time on the said goods and simultaneously enhancing the rate of Basic and Additional Excise Duties. On the same day i.e. 25-3-1985, the Government of India vide Notification No. 103/85 rescinded the Notification No. 211/83, dated 4-8-1983. Consequently, the assessee was asked to pay the higher duty on the said goods cleared on 25-3-1935 as a short levy at Rs. 2,04,240.00 (Basic Rs. 66,592.44, Additional Rs. 9,597.18 and Special Rs. 1,28,050.38) by the original authority. 4. The appellant resisted the demand made by the lower authority and filed an appeal before lower appellate authority. The appellant argued before the lower appellate authority that the Notification issued on 25-3-1985 were made available to the public only on 15-4-1985 inasmuch as the Gazette Copy was actually sold to the public only on that date. The appellant also cited certain decisions of the Hon'ble Supreme Court and High Courts. It was argued by the appellant before the lower appellate authority that there was a radio and TV annou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity - of the impugned Notification No. 142/86-Cus., dated 13th February, 1986. The contentions urged at the hearing admit of being noticed and formulated thus: First, that the import was complete even before the impugned Notification can be said to have come into force as the impugned notification was not made known to those who were likely to be affected by it as the notification was not available in Bombay till the 19th of February, l986." (Emphasis supplied by the ld.Advocate) 8. In the instant case, the Counsel argues that the appellant's case is not that the Notification was not available in any particular place; but it was available throughout India till 15-4-1985. He also showed the communication received from the Government to this effect. Therefore, the public at large could not have come to know of the same earlier. Hence there is a difference between the instant case with the Pankaj Jain's case supra. As far as the Radio announcement is concerned, he specifically states that the announcement was only cryptic. Apart from the said distinction made in the case of Pankaj J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or through which such knowledge can be acquired with the exercise of due and reasonable diligence.' [See also D.B. Raju v. H.J. Kantharaj : l990 (4) SCC 178 Para 14]" 12. The said Pankaj Jain's case also refers to another Supreme Court in the case of B.K. Srinivasan v. State of Karnataka reported in AIR 1987 SC 1059 which has been extracted in paragraph 8 of the Judgement. 13. The Hon'ble Supreme Court at paragraph 9 of the Pankaj Jain's case also held as follows :- "We, therefore, see no substance in the contention that notwithstanding the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability. This contention of Sri Ganesh is unacceptable....." 14. It is the contention of Sri R.N. Das, ld. Sr. Counsel that this observation has to be confined only to the availability of Notification in Bombay. We are afraid we cannot agree to the same. No doubt, in that case, it was an argument made regarding the availability of the Notification in Bombay. But the Hon'ble Supreme Court did not confine itself to Bombay only. When we see the observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 637 (Mad.). This judgement 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 applicable till the High Court decides on the reference to the contrary. However, in the case of Century Enka, though I agreed to allowing the appeal, it was only due to the fact that there was no evidence to rebut the contention that the notification was not made public, till it was put on sale by the Govt. Press. Here when the admitted position is that it was announced in the Radio on the same date, going by the principles laid down by the Supreme Court in D.B. Raju v. Kantha Raj, I am to hold that notification, having been published on the same date is effective irrespective of the date of availability of the Gazette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would indicate that the Gazette dated 15-12-1990 might not have been published on that date, we find, are largely in the realm of presumption. There is no material to indicate the Gazette containing the notification was not in fact published on the date indicated on it." 21. In fact, in the Pure Drinks' case the Tribunal held in favour of the Department following the Pankaj Jain's case. Therefore, Pure Drinks only supports our view which we are taking. Moreover, it was never the case of the appellants that the notification was not published on that date. 22. The other arguments of the learned Sr. Counsel namely the difference between the Notification and the Parent Act, to which we need not refer, are dealt with by us as an undisputed fact. Increase in levy of Excise having been made known or 'published' by the Radio announcement, we are firmly of the view that the Department's case is strong enough and the appellant does not have any merit in the case. Hence the appeal bearing No. E(SB) 503/96-Cal stands dismissed. 23. Appeal No. E/3465/88D : In this matter, the appellant company was manufacturing Cigarettes of various brands falling under the erstwhile Tari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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