1994 (11) TMI 207 - AT - Customs

Dispute over Notification Dates' Validity: Tribunal Split Decision

The case involved a dispute regarding the effective dates of notifications on revised duty rates. The appellants argued that the notifications were not ... Appeal - Exemption Notification - Withdrawal of Issues Involved:1. Effective Date of Notification2. Distinction Between Printing and Publishing3. Applicability of General Clauses Act4. Role of Radio Announcements and Press Releases5. Legal Precedents and Case Laws6. Natural Justice and Public Access to Law7. Judicial Interpretation and Practical ImplicationsDetailed Analysis:1. Effective Date of Notification:The appellants contested the effective dates of notifications dated 25-3-1985 and 2-9-1985, arguing that the revised rates of duty should not apply because the notifications were not made public on those dates. They cited confirmation from the Assistant Controller of the Government Press that the Gazette containing the notifications was made available for public sale only on later dates. The lower authorities, however, held that the notifications were effective from the date of issue.2. Distinction Between Printing and Publishing:The appellants emphasized the distinction between printing and publishing, arguing that a notification is not effective merely because it is printed on a certain date. They referred to case laws, including Jayalakshmi Talkies (AIR 1982 Andhra Pradesh 174) and a Chancery Division case, to support their argument that publication requires making the notification available to the public.3. Applicability of General Clauses Act:The appellants argued that Section 5(3) of the General Clauses Act, which states that a Central Act comes into operation immediately on the expiry of the day preceding its commencement, does not apply to subordinate legislation like rules and notifications. The effective date of such notifications is a matter of proof of their publication.4. Role of Radio Announcements and Press Releases:The appellants admitted that there were radio announcements about the enhanced rates on the evening news of All India Radio on the dates of the notifications. However, they argued that clearances had already been effected before the evening news, and thus the notifications were not effectively published at the time of clearances.5. Legal Precedents and Case Laws:The appellants cited several legal precedents, including the Supreme Court judgment in Pankaj Jain Agencies (1994 Supreme Court Cases 198), where it was held that a notification must be published to be effective. They also referred to the Tribunal's decision in Century Enka Ltd. (1994 (69) E.L.T. 44), which supported their view that a notification is not effective merely because it is printed on a certain date.6. Natural Justice and Public Access to Law:The Tribunal discussed the principle of natural justice, stating that no one can be fastened with a legal liability under the law if that law is not made public. The law prescribes publishing such rules and notifications in the official Gazette to ensure reasonable access to the law by the public.7. Judicial Interpretation and Practical Implications:The Tribunal considered the practical implications of the appellants' arguments, stating that accepting the proposition that the notification is effective from the time it is made public would lead to a situation where the same goods cleared on the same day could be subject to multiple rates of duty. The Tribunal referred to the Supreme Court's decision in D.B. Raju v. H.J. Kantha Raj (1990 (4) Supreme Court Cases 178), which held that subordinate legislation must be published or promulgated in some suitable manner to take effect.Separate Judgments:R. Jayaraman, Member (T):Jayaraman concluded that the notifications were effectively published on the dates they were issued, as there was reasonable publication through radio announcements and press releases. He rejected the appellants' appeal, stating that the notifications were effective from the dates they bore, and the date of sale of the Gazette was not relevant.P.K. Desai, Member (J):Desai disagreed with Jayaraman, emphasizing that the issue should be referred to a Larger Bench for appropriate determination. He argued that the statutory provisions and various judicial precedents supported the view that the date of implementing the notification should be the date when the Gazette is published or brought to the stand.Conclusion:Due to the difference of opinion between the two members, the President was requested to refer the matter to a third member to decide whether the appeal should be dismissed based on Jayaraman's reasoning or referred to a Larger Bench as suggested by Desai.