9911796707
TMI Blog1998 (11) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... on Ball or Roller bearing from 25% + 2% C.V. 15% to 10% + 2% + Rs. 80/- per kg. C.V. 15%. On 12-9-1996 the berthing of the said vessel took place. The respondents assessed the Customs Duty payable in respect of the aforementioned two shipments to Rs. 18,33,723/- and Rs. 6,94,147/- respectively in place of the earlier rate Rs. 2,41,575.53p. and Rs. 2,01,132.79p. It appears that the petitioner sent a letter on 17-3-1997 to the Supervising Officer, Government of India asking inter alia as to when the said notification was published in the Gazette of India and on what date the said Gazette was made available from its counter for sale to the public. The petitioner in reply to his aforementioned enquiry received a letter dated 28-4-1997 from the Supervising Officer, Government of India wherein it was revealed that the Gazette bearing No. 289 published in part II Section 3(1), dated 11-9-1996 were received in the Depot on 16-1-1997 and were placed on sale on the same date. It is not in dispute that the Customs Duty would be assessed in terms of the prevailing duty. 3. It is also not in dispute that the subject matter of duty is covered by Section 25(3) of the Customs Act, 1962. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Subordinate Legislation comes into force held that - "15.....If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication it will take effect only when it is published through the customarily recognised official channel, namely, the official gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a dew individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient". Publication of such Subordinate Legislation therefore is essential. 9. In State of Madhya Pradesh v. Ram Ragubir Prasad Agarwal (supra) the Apex Court while considering the matter relating to publication of syllabi laid emphasis on the need of publication in the following terms :- "24. Necessarily publication is important and we should insist that the State Government should not dismiss it as a ritual of little moment. As we have earlier indicated, but may repeat for emphasis that there is an object in publishing the syllabi and this public purpose will be stultified to the prejudice of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published." 12. The same view has been reiterated by the Apex Court in Garware Nylons Ltd. (supra). Interestingly, in that case also like the present one a letter was issued by the Assistant Collector (periodicals), Ministry of Works Housing, Department of Publication, Civil Lines, Delhi which reads thus - "With reference to your Letter No. GN/85/10 Misc, dated 8-10-1985 regarding the date of availability of Gazette of India Extraordinary Part II Section 3 sub-section (i), dated 30-9-1985 No. 439. I write to inform you that the above mentioned Gazette was made available for public sale on 1-11-1985 as per record of this Department." 13. Upon taking into consideration of the aforementioned communication and the decision in New Tobacco Company (supra) the Apex Court laid down the law that a notification cannot be said to have been duly pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that before a person is made known of his liability under the Act, the same must be published by the modes prescribed therein as indicated hereinbefore publication of such law was considered to be an essential part of the principles of natural justice. Although ignorance of law, as is well known, is no excuse, but in view of the aforementioned decisions of the Apex Court it must be held that the executive must make all reasonable efforts to make the law known to the public. 17.In the affidavit-in-opposition, no statement has been made as was sought to be contended by Mr. Choudhury that the aforementioned Gazette dated September 11, 1996, might have been offered to the public for sale at Delhi at a much earlier date. 18.Had such a case been made out, the Court could have considered the same. It is also not the case of the respondents that on September 12, 1998, the Assessing Officer was in possession of a Gazette published on September 11, 1996. Only because they might have received a copy of the said Notification although the same was yet to be gazetted and/on published by itself did not empower the respondents to make assessment on the basis of such new notification. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaya Sen v. Sujit Kumar Sarkar, AIR 1998 Calcutta 288, of which I was a member, inter alia, held as under : "27. It is now well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. See Quinn v. Lealham (1900-1903) AER (Rep) 1, Krishna Kumar v. Union of India, 1990 (4) SCC 207: (AIR 1990 SC 1782), Commissioner of Income-tax v. Sun Engineering Co. Ltd. reported in AIR 1993 SC 43: (1993 Tax LR 58), Regional Manager v. Pawan Kumar Dubey, reported in AIR 1976 SC 1766, and Municipal Corporation of Delhi v. Gurnam Kaur reported in 1988 (1) SCC 101 = AIR 1989 SC 38. 28. It is also a settled law that a decision is not an authority on a point which was not argued. See Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, reported in 1997 (1) SCC 203." 24.As indicated hereinbefore, the questions raised in this application were not raised before the Apex Court in CIT Limited (supra) and Pankaj Jain Agency (supra); and in this view of the matter this Court is bound to follow the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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