1. The above-mentioned appellants have filed the captioned four appeals being aggrieved by the Order Nos. 55/87 and 56/87, both dated 7th September, 1987, passed by the Collector of Customs, New Delhi. The issue involved in Appeal Nos. 3605/87 and 3606/87 is similar. Appeal Nos. 3607 & 3608/87 arise out of the same orders which are appealed against in appeal Nos. 3605 & 3606/87. As such the above captioned four appeals are disposed of by one consolidated order.
2. The appellants had imported Cinnamonum Zolyanicum (crude drug) and had filed two bills of entry Nos. 347 & 348. The appellants had claimed clearance under OGL 6 item 37(4) of Imports-Export Policy 1985-88 which reads as under:- "Crude Drugs required for making Ayurvedic and Unani medicines as per list 4 of this Appendix (import of Jade, pearls and corals will be allowed only in the powder form and of non-jewellery quality only)".
2.1. Accordingly the import of Darchini (Bark) vide item 47 of list 4 was admissible under O.G.L. This item was deleted vide ITC Public Notice No. 121-ITC (PN)/85-88 dated 6th October, 1986. This item was also covered by Item 39 of Appendix 6 but the same had been deleted vide I.T.C. Public Notice No.119-ITC (PN)/85-88 dated 26.9.86 read with Import Trade Control Order No. 63/85-88 dated 26.9.86. It was, however, brought under Appendix 5, Part A item 32-A, the import of which was canalised through Public Sector Agencies through this I.T.C. Public Notice No.119-ITC (PN)/85-88 dated 26th September, 1986. As per para 4 of this Public Notice, the import is admissible under O.G.L. where LCs have been opened and established before the date of Public Notice i.e.
6th October, 1986. LC No. BY 2230 & 2232 were issued on 6th October, 1986. The appellants contended that the application for LCs was made on 4th October, 1986 but were issued on 6th October, 1986. The learned Collector of Customs had passed the orders as under:---------------------------------------------------------------------------------Name of the Order-in- Quantity con- Redemption Personal penal-party original Num- fiscated fine imposed ty imposed ber Rs. Rs.--------------------------------------------------------------------------------Silibans Interna- 56/87 27 tonnes 7,75,000/- 50.000/-tionalSh. Vinod Bansal " " 50,000/-Silibans Interna- 55/87 13.5 tonnes 3,75,000/- 25,000/-tionalSh Vinod Bansal " " 25,000/--------------------------------------------------------------------------------- 3. Being not satisfied the appellants have come in appeal before the Tribunal. Shri M.G.S. Murthy, the learned Advocate who has appeared on behalf of the appel appellants states that the matter is covered by an earlier judgment of the Tribunal in the case of Gulab Impex Enterprises Ltd. v. Collector of Customs, New Delhi in Appeal Nos. C/2448/87 & C/3167/87-NRB vide Order Nos. A/27 and 28/1988-NRB dated 20.1.1988.
Shri M.G.S. Murthy, the learned Advocate states that on all counts the facts of the present case are similar and the earlier judgment of the Tribunal which was based on the following judgments:- 2.1987 (29) ELT 379 (Tribunal) - Gokaldas Harbhagwan Das v. Collector 4. Shri Murthy, the learned Advocate has argued that the Public Notice 121-ITC (PN)/85-88 dated 6th October, 1986 had come to the knowledge of the appellants on 9th October, 1986 whereas letters of credit were opened on 6th October, 1986. Shri Murthy has argued that since the facts of the case in all the four appeals are similar, the same may be allowed on the basis of the judgment of the Tribunal. In case the present Tribunal is not inclined to follow the earlier judgment, a fresh hearing may be granted.
5. Shri K. Kumar, the learned SDR who has appeared on behalf of the Respondent states that the date appearing in the Gazette should be taken as a conclusive proof of its publication. He has relied upon a judgment of the Supreme Court in the case of Deepak Pahwa, etc. v. Lt.
Governor of Delhi and Ors. (AIR 1984 SC 1721) that publication of a notification and public notice of substance of such notification need not be simultaneous. Shri Kumar, the learned SDR relies on the order-in-original and states that his arguments are the same which were adopted by Shri A.S. Sunder Rajan, the learned JDR in the case of Gulab Impex Enterprises v. Collector of Customs, New Delhi reported in 1988(16) ECR 67. He has pleaded for the rejection of the appeal.
6. We have heard both the sides and have gone through the facts and circumstances of the case. The facts of the present appeal are not disputed. The facts are similar to the facts of the matter involved in the case of Gulab Impex Enterprises v. Collector of Customs, New Delhi reported in 1988(16) ECR 67. Both the sides agree that the facts are similar and as such we need not reproduce the same. The only issue to be decided is whether the Public Notice dated 6.10.1986 appearing in the Gazette of the same date can be said to have been published on 6.10.1986 itself in the eye of law. Shri M.G.S. Murthy, the learned Advocate stated that the appellants came to know about the Public Notice No. 121-ITC (PN)/85-88 dated 6.10.1986 on 9.10.1986 in the Newspaper namely, 'Financial Express' dated 9.10.86. Hon'ble Madras High Court in the case of Asia Tobacco Company Ltd. v. Union of India reported in 1984(18) ELT 152 had held that where a notification has been issued, the effective date is the date of knowledge and not from the date of the official gazette. Para 14 of the said judgment is reproduced below: "14. The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to the 'notification' within the meaning of Rule 8(1) of the Rules. The intendment of the notification in the Official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. 'Notify' even according to ordinary dictionary meaning would be "to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform". It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public. The communication from the Department of Publication, Government of India, dated 23.4.1983, as per extract made above, leaves no room for doubt that the Official Gazette containing the Withdrawal Notification was placed on sale for public only to 8.12.1982. Without a proper notification in the sense, without putting the public on notice of the same, it is not possible to enforce the withdrawal of the exemption earlier accorded. It is not a case of printing, (may be anterior to the publishing) and releasing to the public, the notification, on the same date which the Official Gazette bears. Neither the date of the notification nor the date of printing, nor the date of the Gazette counts for 'notification' within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release 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. But, so far as the petitioner is concerned, we find that by the communication from the third respondent dated 6.12.1982, which obviously was received by the petitioner on 7.12.1982, the petitioner was put on notice of the Withdrawal Notification. Hence, the Withdrawal Notification must be held to be effective so far as the petitioner is concerned only from 7.12.1982. The consequence of lack of due notification is that the Withdrawal Notification became effective so far as the petitioner is concerned only on and from 7.12.1982. It had no legal efficacy anterior to that date. The Respondents have not denied the factual position that the Official Gazette containing the withdrawal Notification, though dated 30.11.1982 was, in fact, placed on sale for public only on 8.12.1982. The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words 'publish in Official Gazette' and the words 'put up for sale to public' are not synonymous and offering for sale to public is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of due notification, as exemplified above. Printing the notifications in the Official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal sense. One of the stands taken by the respondents is that the Officers concerned have been informed by Telex by the Government regarding the withdrawal Notification, as if that would suffice the conception of due notification. A similar contention was repelled by the Supreme Court in State of M.P. v. Ram Ragubir Prasad (AIR 1979 SC 888) by pointing out "contextually speaking, we are satisfied that 'publication' means more than mere communication to concerned Officials or Departments". If this is the legal and factual position, then, with regard to W.P. No. 6049 of 1984, it will stand allowed and a writ of declaration will issue declaring that the Withdrawal Notification took effect only from 7.12.1982 so far as the petitioner is concerned." 7. Similar was the view taken by the Hon'ble Bombay High Court in the case of GTC Industries Ltd. v. Union of India reported in 1987 (13) ECR 1161 (Bombay). The Tribunal had followed the same in the case of Gokaldas Harbhagwan Das v. Collector reported in 1987 (29) ELT 379 (Tribunal). Since there are two judgments of the High Courts in favour of the appellants I am bound to follow the same without expressing my own views. Hon'ble Delhi High Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise, Delhi reported in 1985 (21) ELT 410 had held that it would not be proper for any authorities under the Excise Act to take a different view from that of a High Court even if such decision has been appealed against. Para 30 of the said judgment is reproduced below: "30. Another reason why I think the preliminary objection ought to be rejected is that in the meanwhile the Bombay High Court in a writ petition i.e. Nylon Synthetic Fibres and Chemicals Limited v. Shri R.K. Audim, Assistant Collector and Ors. (Misc. No. 491 of 1964) decided on 30.4.1970, has dealt with the similar points and has come to the conclusion that Polymer chips are not covered under Item ISA of First Schedule of the Act. A similar contention has been made by the petitioner in the present case that Polymer chips are not covered by Entry 15A. It is true that this judgment has been appealed against, but so long as this judgment stands I don't think it would be very proper for any authorities under the Act to take a different view from that of the Bombay High Court. It is true that technically that decision has been given in a case of another company to which the petitioner in the present case was not a party, yet the judicial propriety would require the authorities under the Act to follow the judgment of the Bombay High Court until it is reserved in appeal and not to take a view different from that of Bombay High Court. If this was permitted this would lead to uncertainty of law as the Tribunals are under the General Superintendence of the High Courts and must follow their decision.
If, therefore, the petitioner was to be relegated to seek its remedy before the appellate or the revisional authority only one of the two courses could be followed i.e. (i) that the authority under the Act should follow the Bombay High Court deicision and give relief to the petitioner or (ii) that the respondent should ignore the judgment of the Bombay High Court and take a contrary view. In the event of the first course being followed the Excise authorities will be prevented from challenging the view taken by the Bombay High Court so far as the present petitioner is concerned because it will not be possible for the respondent to have this matter pursued further in any proceedings. In the other alternative, the result will be ignoring and acting contrary to the judgment of the Bombay High Court by the Tribunal under the Act which would not be consistent with the proper administration of justice but rather will be destructive of it."Gulab Impex Enterprises v. Collector of Customs, New Delhi reported in 1988 (16) ECR 67 had held that the effective date of public notice is the date when the same was made known to the public. Para 12 of the said judgment reproduced below: "12. After giving our due consideration to the arguments so advanced by the parties, we are of the considered view that the contention raised by the Learned Counsel for the appellants has much force. In the case of Asia Tobacco Company Ltd. v. Union of India, supra, it was held by the Madras High Court that Notification takes effect from the date when the Official Gazette is circulated and put on sale to the Public and the date of its issue, date of printing of the Gazette or the date of the Gazette are irrelevant. Same view is expressed by this Tribunal in the case of Gokal Das Harbhagwan Das v. Collector, supra. Moreover, we have the recent judgment of the Hon'ble Supreme Court on this concept. In B.K. Srinivasan and Ors.
v. State of Kamataka (1987) 1 SCC 658 Chinnapa Reddy J, speaking for the Bench has this to say on the subject: "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the stand point of the 'conscientious good man' seeking to abide by the law or from the stand-point of Justice Holmes's 'Unconscientious bad man' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. 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 then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode of publication may be sufficient, if reasonable. 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 recognized official channel, namely, the official gazette or some other reasonable mode of publication. There may be a subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient.
Relying upon the said decision of the Supreme Court rendered in B.K. Srinivasan and Ors. supra and other judgments and more particularly after taking into consideration the fact that the appeal is pending in the Supreme Court against the judgment rendered by the Madras High Court in the case of Asia Tobacco Co. Ltd., supra the Bombay High Court has also taken the same view in the case of G.T.C. Industries Ltd., supra. In the instant case, it is the case of the appellants that though the Public Notice dated 6.10.86 appears in the Gazette of the same date, it was not make known to the public, in general, till it was briefly reported on 9.10.1986 in the Newspaper, namely, Financial Express. This was never controverted by the adjudicating authority although the plea was taken up before him right from the beginning. Even during the course of arguments before us, this fact was not controverted. On the other hand, we have also perused the record to satisfy ourselves about the said contention of the Learned Counsel for the appellants, but finds nothing contrary.
There is no evidence on record from the side of the department to show as to when the Public Notice dated 6.10.1986 was prepared, signed and delivered to the Government Press for publication in the Gazette. Likewise, there is no evidence on record to show as to at what point of time of 6.10.1986 the said Public Notice was received for publication. Similarly, there is no evidence on record to show as to at what point of time or date the same was printed and was put on sale to public. Thus, we have no hesitation in holding that the said Public Notice took effect from 9.10.1986 when it was first briefly reported in the "Financial Express". The reasonings of the Learned adjudicating authority that there was an omission in the ITC Public Notice No. 119/85-88 dated 26.9.1986 to delete the imported item from OGL and, therefore, this omission was covered by the Public No. 121 of 6.10.1986 cannot be accepted. If for sake of arguments it is accepted that there was any omission to delete the imported item in ITC Public Notice No. 119/85-88 dated 26.9.1986, the importer or the public cannot be penalised for the omission on the part of the authorities concerned. Thus when the Public Notice in question though dated 6.10.1986 and appears in the Gazette of the same date was not made known to the Public before 9.10.1986 as stated above, the appellants cannot be deprived of the benefit of the exception carved out in Para-3 of the Public Notice dated 6.10.1986, if he satisfies all the conditions laid down therein.
Consequently, we hold that the appellants importer had entered into commitment with foreign supplier for the import of the goods by means of irrevocable Letters of Credit already opened and established before the date of the Public Notice in question. Before we part on this question, it will be useful to mention here that the Customs Authorities at Bombay cleared another consignment (3.5 MTs) of the identical goods in March 1987, which was imported by the appellants on the strength of Letter of Credit No. BY-2229 dated 6.10.1986 without any objection." 9. In view of the above discussion, the appeals have to be allowed in the case of M/s. Silibans International, I set aside the redemption fine of ks. 7,75,0007-and 3,75,000/- and in the case of Shri Vinod Bansal I set aside the personal penalty of Rs. 50,000/- and Rs. 25,000/-. The penalty imposed on M/s. Silibans' International of Rs. 50,000/- and Rs. 25,000/- is also set aside. In the result, the impugned orders are set aside. The above appeals are allowed. The revenue authorities are directed to give consequential effect to this order.
10. Since it is admitted to both the sides that the facts in this case are on all fours with the facts of the case of Gulab Impex Enterprises Ltd. v. Collector of Customs, New Delhi [1988(16) ECR 67] and the learned SDR for the department has adopted the same arguments which had been advanced by the learned D.R. in the aforesaid case. No new points arise for consideration in these appeals. Following the judgment of the Tribunal in the case of Gulab Impex Enterprises to which I was a party, I allow the appeals.