Judgment:
1. This appeal is directed against the order of the Additional Collector of Customs, Madurai dated 10-9-1989. The appellant imported 3000 kgs. of cloves under Bill of Entry No. 82 dated 13-12-1988 and proceedings were instituted on the ground that the goods were not covered by O.G.L. at the time when the import took place resulting in the impugned order, levying a fine of Rs. 50,000 in lieu of confiscation of the goods imported, besides a penalty of Rs. 100/- under Section 112 of the Customs Act, 1962 ('the Act' for short).
2. Shri Arvind Datar, Ld. Counsel submits that the Public Notice dated 29-11-1988 removing cloves from OGL and bringing it under canalised category was not published in the Gazette and made available for sale till 7-12-1988 and, therefore, the import of the cloves in the present case at Tuticorin on 6-12-1988 would not be unauthorised or in contravention of law in the factual background of the case. The Ld.
Counsel further submitted that the matter was adjourned on a number of occasions in the past only to enable the Ld. D.R. to produce proof about the publication of the Public Notice in the Gazette and making the same available to the public; for appreciation of the issue involved and till date the Department has not been able to produce the same. The Ld. Counsel therefore, prayed for setting aside the impugned order.
4. I have carefully considered the submissions made before me. It is not disputed that a Public Notice bringing the cloves under the canalised item from OGL has to be published in the Gazette in law and such Gazette should also be made available to the public and if the twin conditions are not satisfied, the notification would not become operative. I should like to refer to the ruling of the Judgment of the Bombay High Court in the case of 'Swati Chemicals v. Collector of Customs', reported in 1990 (50) ELT 342 (Bom.) which also refers to the ruling of the Madras High Court in the case of 'Asia Tobacco Co. v.Union of India' 1984 (18) ELT 152 (Mad.). The operative and the relevant part of the rulings of the Madras High Court, Bombay High Court as well as the Supreme Court cited above reads as under :- "10. Shri Seervai has relied on two rulings, one of a learned Single Judge of this Court and another of a learned Single Judge of the Madras High Court. In the case of Asia Tobacco Company v. Union of India -1984 (18) ELT 152 (Mad.), the Ld. Single Judge of the Madras High Court was pleased to observe :- '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, Govt.
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 on 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.' 11. In the case of GTC Industries Ltd. v. U.O.I., 1988 (33) ELT 83 (Bom.), the learned Single Judge of this Court held :- The publication in the Gazette is a requirement of the rule and the section. That publication cannot be equated with the mere printing.
It is the availability of the printed material to the general public that constitutes the publication required by the statute and the rules of natural justice. In the absence of the knowledge of the withdrawal of the notification, even the department permitted the petitioners to avail of the concession granted by the notification dated 1st March, 1979. This went on till as late as 14th Dec. 1982.
However, the petitioners cannot contend that they should be permitted to avail of the concession right till December 14, 1982, when the withdrawal of the concession was. brought to their notice by a letter from the Excise department. The withdrawal notification had been published in the Gazette and the Gazette was on sale as from 8th December, 1982.' Now, on this issue whether the Withdrawal Notification would be applicable in the present case. I may cite the observations of the Supreme Court in the case of B.K. Srinivasan and Ors. v. State of Karnataka and Ors., (1987) 1 SCC 658, wherein Chinnappa Reddy, J. speaking for the Bench observed :- '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 standpoint of the/conscientious good man' seeking to abide by the law or from the standpoint 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.'" On going through the records I find that the matter was adjourned at the request of the Ld. D.R. more than six times and he is not able to produce any proof in regard to publication of the same in the Gazette on or before the relevant date of import of the goods in question. On the other hand, the appellant is able to produce a communication dated 3rd March 1989 from the Department of Publications, Govt. of India which reads as under, - "With reference to your letter No. nil dated 22-2-1989 regarding the date of availability of the Gazette of India Extraordinary Part I Section I sub-section -dated 29-11-1988 Issue No. 256,1 write to inform you that the abovementioned Gazette was made available for public sale on 7-12-1988 as per records of this Department." I, therefore, following the ratio of the rulings of the High Courts cited supra and the Supreme Court, hold that the import cannot be held to be in contravention of law. In the above peculiar circumstances and in the light of the above, I set aside the impugned order and allow the appeal.