Dixon Utilities and Exports Ltd. Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:
1. shri r. swaminathan, the ld. consultant appearing for the appellants in the instant case, at the outset, submits that he may be permitted to withdraw the miscellaneous application no. e/misc/515/97-nb. shri p.k.jain, the ld. sdr, submits that once an application is filed and was argued, it should be decided finally.2. heard. considered. since the applicant has sought permission to withdraw the miscellaneous application, we accept the request for withdrawal. the miscellaneous application no. e/misc/515/97-nb is, therefore, dismissed as withdrawn.3. arguing on the stay application, shri r. swaminathan, the ld.consultant submitted that the only dispute in their case was about the date of publication of the notification no. 76/95. the ld. consultant referred to the judgment of the hon'ble delhi high court dated 3-12-1993 in the case of eicher motors ltd. and ors. v. union of india and ors. wherein it was held that: "in this case we issued notice limited in the first instance to the question as to the non-disclosure of the date when the notification no. 129/93, dated 11-6-1993 was made available to the public. reply has been filed by the controller of publication. it is stated that this notification was made available to the public only on 22-7-1993. that will, therefore, be the date of publication of the notification in view of our judgment in universal cans and containers ltd. v. union of india, 1993 (64) e.l.t. 23. the bill of entry, therefore, be processed on the basis of the date of notification as 22-7-1993. no further orders are required on this petition. the writ petition and c. no. 7878/93 stand disposed of." 4. he submitted that the hon'ble supreme court dismissed the slp filed by the revenue in their order dated 25-3-1997. the ld. consultant also referred to the judgment of this tribunal in the case of tunga bhadra industries ltd. v. cce, "6. following the authorities referred to in para 4 above, we hold that the notification 99/84, dated 30-4-1984, having been made available for sale to the public only on 22-5-1984, did not take effect during the period relevant to the present dispute, namely from 30-4-1984 to 18-5-1984. the demand for duty in clearances made during this period is, therefore, not sustainable and hence the orders of the lower authorities are set aside and the appeal allowed with consequential relief to the appellants." 5. the ld. consultant submitted that when the collector of central excise filed an appeal against the order of the tribunal, the apex court held "in view of the letter issued by the department of publication that the gazette was made available only on 19-5-1984, i.e.made available at the place of its printing and publication itself, we see no ground to entertain this appeal and dismiss the appeal." he submitted that in their case, the notification was available on 10-4-1995 though the date printed in the notification was 1-4-1995. he submitted that it is the date of publication and not the date which is actually printed on the notification. the ld. consultant submitted that the consistent view of the apex court is that it is not the date of publication alone in the notification, but it is the date when the notification was for the first time made available. he, therefore, submitted that since in the instant case, the notification was for the first time made available on 10-4-1995, therefore, their case was fully covered by the various decisions of the supreme court and prayed that pre-deposit of duty amounting to rs. 7,06,460.82 may be dispensed with.5. shri p.k. jain, the ld. sdr, opposes the request for dispensing with the pre-deposit of duty and submits that naturally the date printed on any notification is the date of its publication and therefore, i.e. the material date for the purpose of implementing the notification. he submits that the date on the relevant notification was 1-4-1995 and that this notification pertains to import policy for which wide publicity is given in advance. he, therefore, submits that there is no case for dispensing with pre-deposit of duty and that the appellants may be directed to deposit the entire amount of duty.6. heard the submissions of both sides. we note that notifications, which are non-tariff notifications, sometimes are sent to the press for publication, but are published after a lapse of time in some cases.sometimes, the date on which notification was sent for publication is indicated in the notification, but the notification actually becomes available for the first time at the place of printing after a lapse of time. having regard to this actual position prevailing in the publication of notifications, we direct the applicants to deposit a sum of rs. 1.50 lakh (rupees one lakh and fifty thousand only) on or before 18th december, 1997. on compliance of this order, deposit/recovery of the balance amount of duty shall remain stayed during the pendency of the appeal. failure to deposit the amount as stipulated above shall lead to dismissal of the appeal without any further notice.

Judgment:
1. Shri R. Swaminathan, the ld. Consultant appearing for the appellants in the instant case, at the outset, submits that he may be permitted to withdraw the Miscellaneous Application No. E/Misc/515/97-NB. Shri P.K.Jain, the ld. SDR, submits that once an application is filed and was argued, it should be decided finally.

2. Heard. Considered. Since the applicant has sought permission to withdraw the miscellaneous application, we accept the request for withdrawal. The Miscellaneous Application No. E/Misc/515/97-NB is, therefore, dismissed as withdrawn.

3. Arguing on the stay application, Shri R. Swaminathan, the ld.Consultant submitted that the only dispute in their case was about the date of publication of the Notification No. 76/95. The ld. Consultant referred to the judgment of the Hon'ble Delhi High Court dated 3-12-1993 in the case of Eicher Motors Ltd. and Ors. v. Union of India and Ors. wherein it was held that: "In this case we issued notice limited in the first instance to the question as to the non-disclosure of the date when the Notification No. 129/93, dated 11-6-1993 was made available to the public. Reply has been filed by the Controller of Publication. It is stated that this notification was made available to the public only on 22-7-1993. That will, therefore, be the date of publication of the notification in view of our judgment in Universal Cans and Containers Ltd. v. Union of India, 1993 (64) E.L.T. 23. The bill of entry, therefore, be processed on the basis of the date of notification as 22-7-1993. No further orders are required on this petition. The writ petition and C. No. 7878/93 stand disposed of." 4. He submitted that the Hon'ble Supreme Court dismissed the SLP filed by the Revenue in their order dated 25-3-1997. The ld. Consultant also referred to the judgment of this Tribunal in the case of Tunga Bhadra Industries Ltd. v. CCE, "6. Following the authorities referred to in para 4 above, we hold that the Notification 99/84, dated 30-4-1984, having been made available for sale to the public only on 22-5-1984, did not take effect during the period relevant to the present dispute, namely from 30-4-1984 to 18-5-1984. The demand for duty in clearances made during this period is, therefore, not sustainable and hence the orders of the lower authorities are set aside and the appeal allowed with consequential relief to the appellants." 5. The ld. Consultant submitted that when the Collector of Central Excise filed an appeal against the order of the Tribunal, the Apex Court held "In view of the letter issued by the Department of Publication that the Gazette was made available only on 19-5-1984, i.e.

made available at the place of its printing and publication itself, we see no ground to entertain this appeal and dismiss the appeal." He submitted that in their case, the notification was available on 10-4-1995 though the date printed in the notification was 1-4-1995. He submitted that it is the date of publication and not the date which is actually printed on the notification. The ld. Consultant submitted that the consistent view of the Apex Court is that it is not the date of publication alone in the notification, but it is the date when the notification was for the first time made available. He, therefore, submitted that since in the instant case, the notification was for the first time made available on 10-4-1995, therefore, their case was fully covered by the various decisions of the Supreme Court and prayed that pre-deposit of duty amounting to Rs. 7,06,460.82 may be dispensed with.

5. Shri P.K. Jain, the ld. SDR, opposes the request for dispensing with the pre-deposit of duty and submits that naturally the date printed on any notification is the date of its publication and therefore, i.e. the material date for the purpose of implementing the notification. He submits that the date on the relevant notification was 1-4-1995 and that this notification pertains to import policy for which wide publicity is given in advance. He, therefore, submits that there is no case for dispensing with pre-deposit of duty and that the Appellants may be directed to deposit the entire amount of duty.

6. Heard the submissions of both sides. We note that notifications, which are non-tariff notifications, sometimes are sent to the press for publication, but are published after a lapse of time in some cases.

Sometimes, the date on which notification was sent for publication is indicated in the notification, but the notification actually becomes available for the first time at the place of printing after a lapse of time. Having regard to this actual position prevailing in the publication of notifications, we direct the Applicants to deposit a sum of Rs. 1.50 lakh (Rupees One lakh and Fifty thousand only) on or before 18th December, 1997. On compliance of this order, deposit/recovery of the balance amount of duty shall remain stayed during the pendency of the appeal. Failure to deposit the amount as stipulated above shall lead to dismissal of the appeal without any further notice.