1. This appeal is directed against the Order-in-Appeal No. 4915/87 BCH, dated 19-11-1987 of the Collector of Customs (Appeals), Bombay, confirming the Order-in-Original No. VIII (Cus.)16-151/TS/86-6246, dated 3-9-1986 of the Assistant Collector of Central Excise, Pune III, rejecting the claim of the appellants for refund of Rs. 6,81,351.94 being the differential duty paid on 15-11-1985 for clearance of DMT during the period from 24-10-1985 to 31-10-1985.
2. The appeal was initially heard on 26-3-1992, when the order was reserved. The Id. JDR, then appearing for the Respondent, however, filed Misc. Application C/Misc./42/92-Bom. in the evening of 26-3-1991, after the hearing was over but the order was kept reserved, contending that the view expressed on an identical issue by the Tribunal, was already challenged before the Supreme Court, and the said court had granted a stay against the said order, and pleaded that this matter may, therefore, be kept in abeyance pending the final decision from the Supreme Court, and to re-hear the matter after the decision from that Court. The said application was heard, and vide this Bench's order No.1684/92-WRB, dated 22-9-1992, it was not deemed necessary to keep the matter in abeyance, however, because of efflux of long time after the appeal was heard, the appeal was ordered to be heard de novo, and has now been so heard, and is being disposed of by this order.
3. The appellants are the manufacturers of Polyester Filament Yarn, and imported DMT as the raw material for the same. Vide Notification No.102/77, dated 1-7-1977, issued pursuant to the powers conferred in them, vide Sub-section (1) of Section 25 of the Customs Act, the Government had exempted DMT from so much of the customs duty leviable thereon, as was in excess of 100% ad valorem. The said notification however stood rescinded vide Notification 304/85, dated 30-9-1985, and because of that the DMT became subject to duty at 150% ad valorem. The appellants were therefore called upon to pay the differential duty, which they did, but then filed a claim for refund contending that though the Notification No. 304/85 was dated 30-9-1985, the same was made available to Public on 2-11-1985, and would become operative from the date of its publication and that the differential duty collected from them was unjustified and ought to be refunded. The appellants were however issued two notices dated 22-7-1986 and 25-7-1986, to show cause why the refund claims should not be rejected. The appellant contested the said notices and hence adjudication was done, and the adjudicating authority vide Order-in-Original, rejected the refund claims. The Collector (Appeals), in the appeal filed before him, also, vide impugned order, agreed to the finding of the adjudicating authority and confirmed the order.
4. Mr. C.S. Lodha, the Ld. Advocate, appearing for the appellants, has pleaded, that with the factual position being not seriously under challenge, the only issue arising for determination, is when could the Notification No. 304/85-Customs, dated 30-9-1985, be deemed to have become effective. Supplementing to the factual position narrated above, he has submitted, that Bond Bill of Entry was filed on 6-8-1985 and by filing various Ex-Bond Bills of Entry for home consumption, the entire consignment was cleared between 24-10-1985 to 31-10-1985 on payment of Customs duty as was payable vide Notification No. 102/77, dated 1-7-1977, but the appellants were thereafter required to pay differential duty on account of rescinding of the aforesaid Notification, vide Notification No. 304/85-Customs, dated 30-9-1985, which the appellants paid on 15-11-1985. The Id. Advocate has then submitted that the said Notification No. 304/85, dated 30-9-1985 was reportedly published in Gazette of India Extra-ordinary in Part II Section 3 Sub-section (1) as was statutorily required and has then referred to the letter dated 13-5-1986 bearing No. Gazette/83133/85 signed by Assistant Controller (Periodicals) in Department of Publications, Ministry of Works and Housing, Government of India, to the effect that the said part of the Gazette was made available for public sale on 2-11-1985, as was evident from the record with that department. He has pleaded that there should be no reason to disbelieve this, particularly when, in the Show Cause Notice issued for rejection of the refund claim filed by the appellants, no averment is made contradicting the said information given by the Assistant Controller, nor is it mentioned that besides publication in the Official Gazette, the said Notification was published or made known to public in any other mode or manner. Thus, as submitted by the Ld. Advocate, it was for the first time on 2-11-1985, that the Notification No. 304/85 was made public, and that before that date it was not known even to the department, who collected the duty as per Notification 102/77, dated 1-1-1977 from the appellants during the period from 24-10-1985 to 31-10-1985, though the Notification No. 304/85 was dated 30-9-1985. The Ld. Advocate has then pleaded that grant of any exemption (or withdrawal thereof) has to be done pursuant to the powers invested in the Government under Section 25 of the Customs Act, by issuance of notification in the Official Gazette, and has submitted that the Notification so issued becomes operative on and from the date of publication in the Official Gazette and that the date of publication in the Official Gazette would be only that date, on which the Gazette is made available to the public. In support of his submission, the Ld.
Advocate has referred to the decision of the Bombay High Court in Union of India v. GTC Industries Ltd. - 1991 (56) E.L.T. 733 (Bom.), where considering the provisions of Section 38 of the Central Excises and Salt Act, 1944, the said High Court has held that the publication of notification is a mandatory requirement and such publication does not mean mere printing but making the same available for perusal by common people including those in trade. He has also referred to an earlier judgment of the same court in Swati Chemicals v. Collector of Customs - 1990 (50) E.L.T. 342 (Bom.) where also similar view is expressed.
Reference is also made to the judgment of Madras High Court, in Asia Tobacco Co. Ltd. v. Union of India - 1984 (18) E.L.T. 152 (Mad.) (which was in a writ petition filed) and of the same High Court in Union of India v. Asia Tobacco Co. Ltd. - 1990 (50) E.L.T. 29 (Mad.) (in Writ appeal filed by the Government), where it is held that the Notification takes effect from the date when the Official Gazette is circulated and put on sale to public, and withdrawal of exemption could be enforced only from the date on which the Notification was made known to the public. Arguing that when publication in the Official Gazette is a condition laid down in Section 25 of the Act, no notification is effective till the same is so published, the Ld. Advocate has cited the Supreme Court judgments in Harla v. State of Rajasthan - AIR 1951 Supreme Court 467 and in B.K. Srinivasan v. State of Karnataka -1987 (1) Supreme Court Cases 658. The Ld. Advocate has then submitted that the same view is also expressed by various Benches of this Tribunal and has cited the decisions in Silibans International v. Collector of Customs - 1989 (42) E.L.T. 632 (Tribunal), Gulab Impex Enterprises v.Collector - 1990 (46) E.L.T. 109 (Tribunal) (publication of Public Notice in Newspaper was held sufficient), B.M. Thakkar & Co. Ltd. v.Collector - 1993 (63) E.L.T. 445 (Tribunal), Haryana Plywood Industries v. Collector - 1990 (47) E.L.T. 93 (Tribunal), of the same party in other appeals, reported in 1993 (63) E.L.T. 235 (Tribunal) and 1991 (51) E.L.T. 199, Jaya Bharat International v. Collector - 1990 (50) E.L.T. 486 (Tribunal), M.B. Udyog v. Collector - 1990 (50) E.L.T. 127 (Tribunal), Mahendra R. Mehta v. Collector -1991 (56) E.L.T. 494 (Tribunal). The Ld. Adv. has also referred to Calcutta High Court judgment in Jindal Strips Ltd. v. Collector of Customs - 1992 (62) E.L.T. 301 (Cal.), where also similar view is taken. The Ld. Advocate has then cited the judgment of the Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs - AIR 1962 Supreme Court 1893, to plead that the Tribunal cannot ignore the law declared by the highest court as also of the High Court of the State and has then referred to the decision of this Bench in Hindustan Petroleum Corporation Ltd. v. Collector - 1984 (18) E.L.T. 358 (Tri.), also to the effect that the Tribunal is bound by the decision of the High Court, under whose jurisdiction the office of the Tribunal is situated.
The Ld. Advocate has submitted that, therefore, the Notification No.304/85, dated 30-9-1985, has to be taken as effective from 2-11-1985, the date on which the same was made available to the Public for the first time, and as such, the differential duty, recovered from the appellants for the clearances made between 24-10-1985 to 30-10-1985, on the basis of the said Notification, has to be taken as unauthorised and excess collection, and ought to be refunded.
5. Mr. K.M. Mondal, the Ld. SDR, has, while supporting the order, initially submitted that on the same point, the decision in Fakirchand v. Union of India has been challenged in the Supreme Court, who have been also examining the issue in Collector v. New Tobacco Co. and has referred to the report in 1993 (44) ECR P 493 and has pleaded that hence, the decision on this point ought to be deferred till the final decision is given by the Supreme Court. On merits, the Ld. SDR has pleaded that Section 25 of the Customs Act, provides for publication of the Notification in the Official Gazette and the publication is deemed to have taken place as soon as the same is printed in the Gazette. In his submission, if information to the public or the trade is considered as a pre-requisite to the effectiveness of any notification, then there could be scope for large scale evasion of duty on the plea that Notification was not known to any particular trading community or individual. The Ld. SDR has also referred to the judgment of Calcutta High Court in General Fibre Dealers Ltd. v. Union of India - 1986 (26) E.L.T. 494 (Cal.) and of Andhra Pradesh High Court in Someshwar Cement and Chemicals v. Union of India - 1992 (57) E.L.T. 593 (A.P.).
6. Considering the submissions made, and taking up first, the request of the Ld. SDR to defer the decision on the issue till the outcome of the similar issue pending before the Supreme Court, it may be observed that, going by the decisions cited, even the Supreme Court had some occasions to consider the issue and give their considered view on the same, and the law as laid down by the Supreme Court, would so far as the same is not over-ruled or reversed, remains a good law. Further, it is also not clear as to whether the said court has at all decided to review their own decisions earlier given. Merely because some appeals, involving the same point has been accepted for hearing, cannot by itself, be a ground to suspend or postpone decision of any identical issue raised before any subordinate judicial or quasi-judicial authority, sine die. That could result into a situation where majority of the litigation could come to a standstill. Further, the Supreme Court has in Union of India v. Kamlakshi Finance Corporation - 1991 (55) E.L.T. 433 (SC) in relation to implementation of the order appealed against, observed that mere filing of the appeal is no ground for not following the order passed and the Madras High Court has in two of their judgments, Mahendra Engineering Works v. Collector - 1992 (60) E.L.T. 194 (Mad.) and MB Ambaresan Factory v. Assistant Collector - 1992 (60) E.L.T. 195 (Mad.) categorically held that mere filing of appeals before the Supreme Court, without obtaining stay, is not sufficient ground for the department to retain the duty amount. If this is the view held by the Supreme Court and the Madras High Court, in relation to filing of the appeals in the very same proceedings, there could hardly be any justifiable ground to postpone the hearing of an appeal only because some identical issue is taken to the Supreme Court.
On an identical prayer, the Special Bench 'C' of this Tribunal, has in Pidilite Industries Pvt. Ltd. v. Collector -1990 (50) E.L.T. 577, held that appeal should not be kept in abeyance pending Supreme Court decision on a similar issue. In these circumstances, the prayer of the Ld. SDR, to keep the appeal pending, cannot be conceded to.
7. Taking up the main issue, Section 25 of the Customs Act, 1962, empowers the Central Government to grant partial or full exemption from the Customs duty, and they may do so "by notification in the Official Gazette". Though the word "publication" is not mentioned, the reading of the section leaves no doubt that what is intended is the publication in the Official Gazette. None appears to have even doubted this aspect.
However, this observation is made to avoid any lurking doubt that may be catered at any given time.
8. Though the said section only mentions about publication of notifications about granting of exemption, it hardly calls for any authentication to the view that when any benefit granted by an issue of a notification, published in the Official Gazette, is sought to be withdrawn and the notification rescinding the earlier notification is issued, the same has to be processed in the same way as the earlier notification. Thus, the provisions of Section 25 of the Customs Act, would mutatis mutandis, stand attracted for the notification issued for rescinding the earlier notification and withdrawal of the exemption granted.
9. The question that then arises is, when the publication could be said to have taken place. The Supreme Court had in State of Madhya Pradesj v. Ram Raghubir Prasad - AIR 1979 Supreme Court 888, the occasion to examine the word "publication" with reference to the provisions in a statute, which read "publish the same in such manner as may be prescribed", and their Lordships referred to Black's Legal Dictionary p. 1386 and held that "publication is an act of publishing anything, offering it to public notice or rendering it accessible to public scrutiny...on advising of the public, making known of something to them for a purpose." The Bombay High Court has, in Swati Chemicals v.Collector (supra) quoting with approval the observation of the same High Court in GTC Industries Ltd. v. Union of India - 1988 (33) E.L.T.83 (Bom.) observed that mere printing does not amount to publication.
Thus, it is clear that when any notification is required to be published, something more than mere printing is required to be proved, and it has to be established that the printed notification was duly published, namely, the same was made available to the public for knowledge. As soon as that is established, irrespective of the fact, whether the public at large has actually known it or not, tine act of publication becomes complete.
10. The issue raised for determination here, however, is when does a notification issued pursuant to the provisions of Section 25 of the Customs Act, becomes effective, and precisely whether the Notification No. 304/85-Cus-toms, dated 30-9-1985 has become effective from that very date, on which it is reported to have been printed in the Gazette of India, Extraordinary of the same date or whether the same became effective, w.e.f. 2-11-1985, when the same was purported to have been made available to the public. Examining the evidence made available, there is a letter from the Asstt. Controller (Periodicals) in the Department of Publications, Ministry of Works and Housing, Government of India, dated 18-5-1986, to the effect that Part II Section 3 Sub-section (1), dated 30-9-1985 (No. 439) of the Gazette of India - Extraordinary (the part where Notification No. 304/85-Customs is printed) was made available for public sale on 2-11-1985. With a specific contention raised even at the time of filing the claim for refund, no evidence in rebuttal has been brought on record by the department, to show that the said part of the Gazette was put on sale at any earlier date. It may have been a matter for argument as to whether publication of the subject notification by any other mode, could have been considered as due publication when the statutory provisions contemplate publication in the Official Gazette, here, even that evidence is not brought on record to establish that the same was made known to the public by any other permissible mode and manner. With positive evidence brought on record by the appellants, to show the publication only on 2-11-1985, and with no evidence adduced to rebut the same or to show publication by any other mode, it has to be accepted that the Gazette containing Notification No. 304/85, dated 30-9-1985 was put for public sale only on 2-11-1985, and it could be only that day when it was made known to the public. As already indicated earlier, the statutory requirement of making it known to the public is deemed to have been complied with, as soon as that is made available to the public and it is immaterial as to when the person concerned actually knew of the same.
11. Mr. K.M. Mondal, the Ld. SDR, has, however, referred to the judgment of Calcutta High Court in General Fibre Dealers v. Union of India (supra), where the said High Court has held that for the purpose of Section 25 of the Customs Act, publication of a notification in the Official Gazette should be deemed to be sufficient to make it operative and its availability to the public cannot be made a condition precedent for the same. In drawing the said conclusion, the Hon'ble Court has preferred the Gujarat High Court judgment in Commissioner of Income Tax v. Shilaben Kanchanlal Rana - 1980 (124) ITC 420, as against two judgments of Allahabad High Court in US Awasti v. Income Tax Appellate Commissioner - (1977) 107 ITR 796 and in Kishanlal v. IAC - (1983) 142 ITR 312. The issue then before the Calcutta High Court was regarding time bound exemption Notification, and the Hon'ble Court seems to have been guided more by equity, when it is observed that public interest may very often be frustrated due to long delay that normally intervenes between actual publication in the Official Gazette and its availability to the public. With due difference, it may be observed the concept of printing in the Gazette and "publication" of the same, possibly was not projected before the Hon'ble Court for their considered opinion. The word "publication" by itself means making it available to the public.
Further, the judgment of the Gujarat High Court in Re : Shilaben (supra) which has been preferred by the Hon'ble Court is in relation to issuance of a notice and publication thereof as required under Section 269D(1) of the Income Tax Act, and did not consider the provision of Section 25 of the Customs Act. Even on the point considered by the Gujarat High Court, the another High Court, namely the Allahabad High Court has held a contrary view. Further, the same High Court has, in Jindal Strips Ltd. v. Collector - 1992 (62) E.L.T. 301 (Cal.), held the view that the date on which the Notification enhancing the rate of duty issued under Section 25 of the Customs Act, becomes effective, is the date when the Gazette was released for public sale. With due apologies therefor, it may not be possible to accept the, view held by the said Hon'ble High Court in Re : General Fibre Dealers, firstly because, the meaning of the word "publication" in contrast to the word "printing" was not duly projected for consideration, and secondly because, the same High Court has in subsequent decision (in Re: Jindal Strips) and other High Courts including the Bombay High Court, as discussed hereafter, have taken a view contrary to the same, and as laid down by the Supreme Court in East India Commercial Co. Ltd. v. Collector of Customs - AIR 1962 Supreme Court 1893, the Administrative Tribunals cannot ignore the law declared by the Bombay High Court.
12. Another decision referred to by the Ld. SDR is of Andhra Pradesh High Court in Someshwar Cement and Chemicals Ltd. v. Union of India - 1993 (44) ECR 161 (AP). The issue before the said High Court however was entirely different from the one here. The said Court was considering the question as to whether an impression created as per the wordings of a press note issued granting exemption for a period of five years from the date of commission of a plant, could over-ride the specific mention in the original notification which provided a period of five years from the date of issue of Notification. A contention appears to have been raised before the said Court, that the Notification was not laid down before the Parliament, and the Hon'ble Court has therefore examined the provisions of Rule 8 of the Central Excise Rules, 1944, as also of Section 38 of the Central Excises and Salt Act, 1944, and in relation thereto, has observed that "The Notification, therefore, acquired statutory force from the date of their publication in the Official Gazette". The said Court was not called upon, nor has decided on issue as to when a notification is said to have been published in the Official Gazette, or whether the Notification would become effective from the date, it is purported to have been printed (and deemed to have been published) in the Official Gazette or from the date when the Gazette is made available to public.
This decision therefore cannot provide any assistance in resolving the issue raised here. Further the same High Court, in G. Narayana Ready v.The State of Andhra Pradesh - 1975 (35) STC 319 appear to have taken a contrary view.
13. During the course of arguments, the Ld. SDR has also referred to Order No. 309-310/89-WRB, dated 20-4-1989 in Appeal Nos. C/960/88 and C/961/88-Bom., where similar issue, as to the date on which the Gazette was made available to public was raised. The Ld. SDR has submitted that this Bench has held the effective date to be the date which the Gazette bears and as such has accepted the proposition that the printing of a notification is the effective date and not the one on which the Gazette was made available for sale. Going through the said order, it appears that the contention of publication of the Gazette at a later date has been rejected on appreciation of the factual position. The concerned notification was dated 23-2-1988 and the Official Gazette also showed the same date, and it was admitted by the appellants in those appeals themselves, that they came to know of such notification on 30-3-1988.
The imports were between May 1988 to September 1988, and then, evidence in the nature of a letter signed by someone purporting to be Lower Division Clerk, for Assistant Controller of Publication, that the relevant Gazette was made available only on 10-10-1988 was produced, the authenticity of which was doubted and with no other evidence led, a legal presumption (which could be raised vide Section 114 of the Evidence Act) was raised that the date of publication was 22-2-1988.
Any finding given, based on a factual position, could not be deemed to be a view taken on any legal issue, and as such the decision of this Bench, cited by the Ld. SDR, cannot render any assistance in determination of the issue raised here.State of Madhya Pradesh v.Ram Raghubir Prasad (supra) discussed hereinabove, to understand what is meant by "publication" the said court has in Harla v. The State of Rajasthan "In absence of any special law or customs, we are of opinion that it would be against the principles of natural justice to permit the subjects of a state to be punished or penalised by laws of which they have no knowledge, and of which they could not even with exercise of reasonable diligence acquired any knowledge. Natural justice requires that before the law can become operative it must be promulgated or published." Here, Section 25 of the Customs Act itself provides for publication of a notification in the Official Gazette. The said court has, in the same judgment, further observed: "The thought that a decision reached in secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access...can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shackles the conscience." Though the Supreme Court was dealing with an issue of Regulation, when the said Court has felt necessity for promulgation even of Regulations, the observations could apply with greater force to the notification, which is statutorily required to be published in the Gazette. Further, the Tax Laws cannot be put on different pedestal, when they too, directly affect the public at large or even a class thereof.
15. The same Apex Court, has in B.K. Srinivasan v. State of Karnataka 1987 (1) Supreme Court Cases 658 observed : "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 power 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 unobstructively made, 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." 16. Though neither of these decisions precisely touch the point at issue here, in both of them the Apex Court of the country has emphasised the necessity of making a statute and any Regulation or order passed under the delegated powers under the statutes, known to the public before the same is brought into effect or is made enforceable.
17. In GTC Industries v. Union of India - 1988 (33) E.L.T. 83 (Bom.) the Bombay High Court, touched precisely the point raised here, in relation to a notification issued under Rule 8(2) of the Central Excise Rules, 1944, where the issue for determination was, whether the notification could be taken as effective from 30-11-1982, on which it was issued and also printed in the Official Gazette or from 8-12-1982, when the said Gazette was made available to public or from 14-12-1982, when the same was specifically communicated to the assessee by the departmental authorities, and the High Court (Single Judge) held that the Notification would become effective on and from the date when the Gazette in which the same was published was made available to the public i.e. 8-12-1982. The matter was however taken in appeal before the Division Bench of the same High Court and the High Court, in their judgment in Union of India v. GTC Industries - 1991 (56) E.L.T. 733 (Bom.) have, referring to the Supreme Court judgments in Harla v. The State of Rajasthan (supra) and B.K. Srinivasan v. State of Karnataka (also supra) and also in D.B. Raju v. H.J. Kanthraj - 1990 (4) Supreme Court Cases 178, upheld the view of the Single Judge and have held that the Notification, to be effective, is required to be made available or made known to the public in general. They have also held that the Act makes publication of Notification mandatory and such publication does not mean mere printing but making the same available for perusal by common people including those in trade. The same High Court has, in another, judgment in Swati Chemicals v. Collector of Customs - 1990 (50) E.L.T. 342 (Bom.) also held that "The mere printing of the Official Gazette containing 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)".
18. Similar view is also held by the Madras High Court in their judgments in Asia Tobacco Co. Ltd. v. Union of India (supra) of a Single Judge and in Union of India v. Asia Tobacco Co. Ltd. (also supra) of the Division Bench. The Calcutta High Court has in Jindal Strips Ltd. v. Collector of Customs (supra), also held the same view, in relation to the notification enhancing the rate of customs duty.
19. Besides this, various Benches of this Tribunal, also seem to have been consistently holding the same view, as is evident from various reported decisions cited by the Ld. Advocate for the appellants, which need not be duplicated here.
20. It has also been submitted, by referring to Tit-Bits Section in Excise Law Times 1991 Vol. 53 page A-61, that the CEGAT decision on this point in Wire Metal Works v. Collector - Order No. 221-223/90-B2, dated 30-3-1990 was taken before the Supreme Court by way of Civil Appeals No. 5405-07 of 1990, and the said Court has dismissed the same, without the actual text of the order, this plea can only be taken note of, without any further consideration.
21. As per the decision of the Supreme Court in East India Commercial Co. Ltd. v. Collector - AIR 1962 Supreme Court 1893, the Administrative Tribunal cannot ignore the law declared by the High Court in the State, which has the power of superintendence over such Tribunal, and as such the decision of the Bombay High Court would operate as binding. Even going by the view held by the Large Bench (Five Members) of the Tribunal in Atma Steels Pvt. Ltd. v. Collector - 1984 (17) E.L.T. 331 (Tribunal) that the Tribunal working on all India basis has to consider view of different High Courts and then apply the view of appropriate High Court, both Bombay and Madras High Courts have held concurrent views. The Calcutta High Court has also, having held a contrary view in General Fibre Dealers v. Union of India (supra), in subsequent decision in Jindal Strips Ltd. v. Collector (supra) held the view in confirmity with the view, held by other two aforementioned High Courts. The Andhra Pradesh High Court also, have, though in Re : Someshwar Cement (supra) taken a contrary view, in G. Narayana Reddy v. The State of A.P.(supra) held a view on the same line as the other High Courts, and further, there is a uniformity in view from various Benches of this Tribunal. Except the decisions referred to by the Ld. SDR, which have been dealt with hereinabove, and also considering the view expressed by the Supreme Court in the judgments referred to earlier, that "publication" is something more than mere printing and knowledge to the public is essential, virtually the consistent view is held by various forums and the same has to be accepted.
22. Even examining independently, as per the wordings of Section 25, the mode for issuance of notification thereunder is prescribed to be publication in the Official Gazette, and not the one where after issuance of any notification the same may also be published in the Gazette and when issuance of the notification itself is by publication in the Official Gazette, the publication of the Official Gazette assumes importance. The Supreme Court has, in Re : Ram Raghubir Prasad (supra), after referring to Black's Legal Dictionary, held that publication is the act of publishing offering it to public. Even in common parlance - word "publish", as per Chamber's Twentieth Century Dictionary, means "to make public - to divulge - to announce - to proclaim - to send forth to the public - to putforth and offer for sale - to put into circulation." Therefore, when the notification is to be issued by publication in the Official Gazette, the crucial date for it becoming effective, could only be that date on which the Gazette is published. The same view is expressed by the Karnataka High Court in Indo Nissin Food Ltd. v. The Appraiser of Customs - 1993 (43) ECC 174 (Kar.). One cannot overlook the probability of delay or a time lag between the Government's decision to issue a notification and its publication in the Official Gazette, as the department responsible for publication may not be under the control of the Department which issue a notification, and at times, that may involve either a loss to the Government or deprivation of benefit to the subject/trade community.
But merely on that count, no other view could be taken till the existing provisions of Section 25 remain on the statute Book. The remedy against the same might lie elsewhere or in the alternative, co-ordination ought to be established between two different departments.
23. Here, though the Notification No. 304/85 is dated 30-9-1985, the Gazette of India, Extraordinary is proved to have been put to sale and made available to the public, only on 2-11-1985, and hence, the notification became effective on and from that day, and hence collecting differential duty, based on that notification, for clearances prior to 2-11-1985, is not correct and the duty so collected has to be refunded. The claim for refund is filed within the period of six months from the date of payment.
24. The order rejecting refund of differential customs duty is therefore set aside and it is directed that the refund as claimed be sanctioned according to law.
25.1 I have perused the learned order recorded by my brother Shri P.K.Desai. Since I have certain views to be expressed on the issue, I record this separate order.
25.2 There can be no dispute on the proposition that any law to be operative, must be made known to the Public. No one can be charged for contravention of a law, which has not been made known to Public. In the case of a regular legislation, bills for giving effect to the provisions of the intended enactment are introduced in the legislature and after a thorough discussion in the Parliament, they are passed by both the Houses and become law, after the assent is given by the President. They become public in this process apart from their printing in the Govt. Press and sale to public. In the case of Sub-ordinate legislation like Rules or notifications, they acquire legal sanctity by gazetting them in the Official Gazette. The decision taken by the Government is given in the legal form of a notification printed and published in the Official Gazette. Normally such notifications, when they are sent to the Government Press for printing and publication, are also released to the Private Publishers of Law Journals and the contents of these notifications are also publicised through Press release and by audio-visual announcements. Nowadays, the full text of these notifications is also faxed to all the field officers concerned for implementation without delay. It is also a regular annual phenomenon that at the time of introducing the finance bill every year, a number of notifications are issued for giving effect to the proposals outlined in the speech of the Finance Minister made in the Parliament.
These notifications are made effective from the midnight of 28th February/lst March every year. For reasons of secrecy, they can be sent to the Government Press only after the Finance Minister introduces the Finance Bill - after about 7 P.M. on 28th February. Can it be expected that notifications running in to a couple of hundreds would be printed on the same night and sent for sale on 1st March? Such a claim cannot be made by any one having some working knowledge of the system of budget making and the secrecy to be kept in the entire operation. If the proposition laid down in the judgment of the High Court considered by my learned brother is to be adhered to strictly, then, it would involve sending these hundreds of notifications to the Government Press in advance, even before they are announced in the Parliament, thus inviting breach of privilege and leakage of Budget proposals. Since these are required to be published for immediate implementation, copies of the notification sent to the Govt. Press are also released to the Press for publication. They are also laid on the floor of Parliament, apart from the Finance Minister making a mention about the changes brought about by these notifications in his Budget Speech. Can we discard all these modes of publiciting in preference to the only mode - namely the date on which the printed copy of the notification in the Official Gazette was put on sale? In my humble view, such a construction would lead to an anomalous situation, where the executive and the legislature decide to give effect to the proposal from 1st March, they would become operative, only when the Manager of the Govt.
Press chooses to put on the printed copies for sale.
25.3 A harmonious construction of the provisions of Section 25 of the Customs Act or Section 5A of the Central Excise Act is therefore called for. Let me now have a look at Section 25 of the Customs Act - which is relevant for this appeal. The relevant provisions of this Section read as below: "If the Central Government is satisfied that it is necessary in the public interest so to do, it may, fey notification in the Official Gazette exempt generally either absolutely or subject to such condition (to be fulfilled before or after clearance) as may be specified in the notifications goods of any specified description from the whole or any part of Customs duty leviable thereon".
From the above, I would deem it proper to construe that the decision of the Government to give exemption acquires the statutory status through a notification gazetted in the Official Gazette. But if the gazetting of the notification is made known to the Public in any acceptable manner of publicising, with simultaneous Press release, audio-visual announcements, announcements in the Parliament, such notification should be deemed to have been publicised, irrespective of the fact that printed copies of such notifications reach the sale counter later. I find that the judicial pronouncements have not specifically gone into the situations as discussed above, presumably because the cases before these did not have such an angle. The Apex Court, which is reported to have admitted certain appeals from the Department, might possibly go into all such contingencies for laying down the case law for meeting all such situations. Since the case laws cited and considered by us are silent on this aspect, I thought it first to record my note, setting out my views as above.
25.4 I also find that a similar view has been expressed by two Members S/Shri Lajja Ram and S.L. Peeran, while dealing with an appeal filed by Ester Industries - 1993 (21) ETR 551. I would like to agree with their views.
25.5 But then, in the appeal before us, there is no contention raised by the Department at any stage either in the show cause notice or in the orders of the authorities below that gazetting of Notification 304/85 has been publicised in any other manner and made known to the public on any date prior to 2-11-1985. No contentions are taken that the said notifications were made public by simultaneous issue of press release or audio-visual publicity or in any other manner. Though the Collector (Appeals) states that gist of the notification is normally published in Newspapers, he does not state whether in this case such a publicity was given. Hence, in the absence of any details of such publicity given for the notification in question, I should respectfully follow the case laws available at present, whatever be my personal opinion. I, therefore, agree with my Id. brother on the question that in this case, the Notification be said to be effective from 2-11-1985 - the date on which the public came to know of the issue of the notification.
26.1 There is yet another argument of Shri Mondal, the Id. SDR, which I feel, should deserve consideration. Shri Mondal pleaded that in this case the duty has been paid on D.M.T. at the revised rate and hence the burden of additional duty would have gone into the cost of the finished product marketed by the appellants. If refund is granted, it would amount to unjust enrichment. He would plead that though this was not the issue in the orders of the authorities below, this is a point of law and particularly in the context of amendment to the provisions of Section 27 of the Customs Act, this aspect should be considered. My learned brother Shri Desai appears to have left the issue open with an observation that refund may be sanctioned in accordance with law. I, however, would like to add that the Supreme Court in the case of Union of India v. ITC Ltd. - 1993 (67) E.L.T. 3 (SC) have held that it is permissible to raise this ground even at the appeal stage and did not accept the argument of I.T.C. that it is a new ground, which cannot be agitated (vide paras 12 to 15 of the judgment). All the same, the Apex Court observed (vide para 12) that an opportunity should be given to the affected party for establishing the eligibility for refund on factual position whether conforming to the amended provisions of Section 11B of the Central Excise Act. Had the factual position been made clear by both the sides as to whether the additional duty burden rests with the appellants or has been passed on to the buyers, we could have gone into this question. Since the facts are to be considered even in the context of the Apex Court's decision for examining the claims in accordance with the amended Section 27 of the Customs Act, this issue is kept open without expressing any final opinion on the appellants' eligibility for refund.
With these observations, I concur with the order proposed by my Id.
brother.