9911796707
TMI Blog1993 (4) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Constitution of India. Another relief sought is for a direction to allow the refund application of the first petitioner. 3. The relevant facts are that the first petitioner is a manufacturer of all kinds of processed foods and for this purpose it has set-up a factory near Bangalore. The first petitioner-company imported the processing machinery required for the said factory from Japan. The goods were imported through the vessel Ocean referred in the writ petition and the vessel entered Indian territorial waters on or about 12-12-1990 and arrived at Madras port on 13-12-1990. The import manifest had been filed even prior to the said date before the Madras Customs Authority and thereafter entry inwards was granted by the Customs Authority on 10-12-1990. The goods were unloaded from the vessel on 14-12-1990 at Madras; however, the goods were consigned to the first petitioner at Bangalore and therefore the goods were transhipped to the Inland Container Depot at Bangalore for unloading and clearance at Bangalore. It is stated by the petitioner that the goods were transhipped to Bangalore by rail on or about 17-12-1990 and according to the petitioners the concerned rail receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable to the public only after 14-1-1991. (This later date was not available to the petitioner and it has been disclosed in the statement of objections filed by the respondents to I.A.I filed by the petitioner). If the Notification issued under Section 25 of the Act, altering earlier Notification, was not in force on 20-12-1990 there can be no doubt, according to the petitioner, that the auxiliary duty could be only 5%. In addition to this the petitioner challenged the validity of Section 15 of the Act. It was also contended that Section 15 is inapplicable to the levy of auxiliary duty levied under Finance Act, 1990, having regard to the language of Section 64 of the Finance Act, 1990. 5. Three questions arise for our consideration in the writ petition. They are : (1) What was the rate of auxiliary duty when the Bill of Entry was presented by the petitioners at Bangalore? (2) Whether Section 15 of the Customs Act is attracted at all for the levy and computation of auxiliary duty levied under the Finance Act, 1990? and (3) Whether Section 15 of the Customs Act is constitutionally valid to the extent it is challenged by the petitioners? 6. RE : QUESTION NO. 1: In para 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpossible for any one to miss this plea raised in the writ petition. The petitioners have repeatedly urged this point and stated the relevant facts. In fact even in the application filed under Section 27, seeking refund of the duty, the first petitioner has raised this plea, as could be seen from para 3 of the grounds of claim read with para 6 thereof. In the show-cause notice issued by the second respondent on 17-12-1991 there is a reference to this plea raised by the first petitioner, but the show cause notice does not traverse this plea. 9. The specific case of the petitioners is that the Notifications in question dated 15-12-1990 were not notified at all on the said date and were published subsequent to the date of the clearance of goods by the petitioners by presenting the Bill of Entry and making the payment of duty. Having regard to the respective pleadings there can be no other finding except to uphold this assertion made by the petitioners and consequently we hold that the basic fact is that the Notifications dated 15-12-1990 were made available to the public only after the goods in question were released by payment of duty on presentation of Bill of Entry on 20-12-1990. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential." Thereafter the Supreme Court also referred to a similar principle prevelant in England and thereafter noted the difference between the law enacted by the legislature and the Notification issued under the delegated authority, thus : "...The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be." The same principle was reiterated again by the Supreme Court in B.K. Srinivasan and Another Etc. Etc. v. State of Karnataka and Others (AIR 1987 S.C. 1059). The que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or promulgation by other means may be sufficient. See Narayana Reddy v. State of Andhra Pradesh, 1969(1) Andh WR 77." Ultimately it was held that the statutory requirement of publication was complied within the said case because the mode of publication was statutorily prescribed and it was done according to law. 11. Mr. Shylendra Kumar sought to distinguish this decision on the ground that nowhere the Supreme Court observed that the notification should have been made available to the public and secondly the Notification therein was issued under a power given under a Rule or under a Subordinate Legislation. It is true, the Supreme Court has not stated that the Notification should have been made available to the public but the Supreme Court pointed out that the requirement of the publication prescribed under the Act shall have to be complied with and that would constitute a due publication to the public. The concept of publication as statutorily evolved for the purpose of the enactment before the Supreme Court had been complied with by the authority concerned and consequently the notification was held as operative. As to the second distinction made by the learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten issued from the Secretariat of the Government or other offices. The citizen to whom it is directed is not expected to have notice of it automatically so as to call for his obedience to it unless it is accompanied by such publicity as would normally bring it to his notice. It is open to the statute under which such subordinate legislation is made to prescribe the mode in which publication is to be made. In the absence of any such direction in the parent statute such subordinate legislation would become operative only on publication in one or other modes which is being normally resorted to. The publication in the gazette is the usual mode in which such legislation is notified to the public and under ordinary circumstances that should be taken to be the proper or the normal course." In Commissioner of Income Tax v. S. Ratnam Pillai (188 ITR 494) the same principle was applied by another Bench of the Kerala High Court. The Notification was dated 29-3-1979 but it was published on 3-4-1979. In this context the Bench observed at page 502, thus : "In the light of the above authorities on the subject, we have no hesitation to hold that the subordinate legislation in this case - the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the publication is the decisive date to make the notification effective. Printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all." 12. In State of Madhya Pradesh and Anr. v. Ram Ragubir Prasad Agarwal and Ors. (AIR 1979 SC 888) the Supreme Court was concerned with the term publication. It was held that, 'publication' means more than mere communication to concerned officials or Departments. It means, offering to public notice, or rendering it accessible to public scrutiny. 13. The decision of the learned Single Judge reported in Asia Tobacco Company Ltd.'s case [1984 (18) E.L.T. 152] was upheld by the Division Bench in Union of India and Ors. v. Asia Tobacco Co. Ltd. [1990 (50) E.L.T. 29 (Mad.) = 196 ITR 318]. The Withdrawal Notification was made available to the public by sale only on 8-12-1982 in the said case and therefore the Bench held that the Withdrawal Notification became effective only from that date viz. 8-12-1982. 14. A few decisions cited before us by the learned Counsel for the petitioner and the Standing Counsel for the respondents are : (1) Jindal Strips Ltd. v. Collector of Customs [1992 (62) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o collect tax at a higher rate, ignoring the Notification issued under Section 25. Any assessment of tax, ignoring the Notification issued under Section 25 would be an illegal collection, rendering the assessment violative of Article 265 of the Constitution. Levy and collection could be only as prescribed by law and the term law comprises a valid statutory Notification. The manner of issuing the Notification has to be in the mode prescribed; (as in the case of B.K. Srinivasan's case, AIR 1987 SC 1059). If the manner and mode of making a notification are not prescribed, then the question arises, as to when the said 'Notification' becomes an effective notification. In the case of a Central Act, its coming into operation is governed by Section 5 of the General Clauses Act, 1897. There is no similar provisions governing the "coming into operation" of a Notification. 16. The very concept of a 'Notification' involves the requirement of conveying its existence to others. The term "Notification" means "(i) the act or an instance of notifying; (ii) a written or printed matter that gives notice" (vide Webster's New Collegiate Dictionary). 17. When Section 25 states that the Central Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The real test is whether the Parliament prescribed a particular mode for the publication, so as to make the Notification effective; if the prescribed procedure is followed, subject to other considerations as to reasonableness, validity, etc., the notification would become effective and operative; if no procedure is prescribed, court has to consider whether the purported notification or any other subordinate legislation was issued in a manner, from which, its due publication to the public could be inferred. 22. In the exercise of a power to make a subordinate legislation, principles of natural justice has no role to play. (Vide: M/s. Sri Sitaram Sugar Co. Ltd. and Anr. v. Union of India and Others - [AIR 1990 SC 1277]. Here we are not concerned with the principles of natural justice, at all; we are concerned with the content of the term 'notifications' and when a printed matter could be called a 'notification'. 23. The decision of the Supreme Court in Indian Express Newspapers (Bombay) Private Ltd. and Others Etc. Etc. v. Union of India and Others (AIR 1986 SC 515) has no application to the question before us. 24. In view of the above we have no hesitation in rejecting th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
