1990 (7) TMI 234

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.... :- "Order No. M-195/89-D 2A. Ld. Counsel stated that this application has been filed in connection with their appeal No. CD/A-1122/89-D. 2.B They had presented a Bill of Entry on 6-10-1986 and the goods were allowed to be cleared on the basis of the exemption claimed by them. However, subsequently, they received a demand notice asking them to pay the duty in question. 3. No particular reason was given in the demand notice. 4. They had replied to this notice and the Assistant Collr. passed the order-in-original apparently without taking their reply into account and again without assigning any reason for demand of the differential duty. 5. Their appeal was also rejected by the Collector (Appeals). 6. The issue, however, ....

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....tificate indicating the date of releasing it for sale, the reason being that in a number of Court judgments, it has been held that it is not the date indicated on the Gazette notification but the date on which it was actually released for sale which was important and was required to be taken into account. 8. The Collector, however, regretted that he could not issue such a certificate in view of the directions from the CBEC. Accordingly, they addressed a letter to the CBEC and the Commissioner, Tax Research, replied to them. The correspondence exchanged is at Annex. XIII to the application. 9. From this, it is apparent that the CBEC and the Commissioner are coming in the way of their getting the relevant information. Since the whole ca....

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.... passed with reference to the same. 11. The Ld. JDR stated that it is the appellants who had initially claimed the benefit of the notification which was allowed to them. The benefit was, however, incorrectly allowed by the assessing officer. Perhaps he did not notice that the rescinding notification had come into force on the date of presentation of the Bill of Entry. It was also his contention that the Respondent in this case is the Collector of Customs, Calcutta and not the CBEC or the Commissioner, Tax Research. Under the circumstances, the Tribunal could give appropriate directions only to the said Collector and not the CBEC or other officers. It was also his contention that Sec. 30 of CPC and Sec. 74 and 78 of the Evidence Act were ....

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....to be issued in this case. 15. A remand at this stage would cause undue hardship to the appellants as the matter has already been pending for a long period, he added. 16. In response to a Court question both the sides could not indicate the designation of the officer who had assessed the Bill of Entry. 17. We find that the ld. Consultant's pleadings have a lot of force. 18. The demand notice apparently gives no reasons for the amount in question. It merely indicates the notification number and date which, by itself, was not sufficient. 19. The Assistant Collector has passed an ex parte order apparently without taking into account the appellant's reply and without granting a hearing. Furthermore, he has not given any reason fo....

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....ent that the 'Notification should be applicable from the date it is put on sale for public'. He has, however, not accepted the date indicated by the appellants on the ground that the appellants have failed to produce documentary evidence in support of their contention. 23. In our opinion, a gazette notification bearing a particular date is presumed to be published on the date indicated thereon unless proved otherwise. If it can be shown that it was actually published on a date subsequent to the one indicated on it, then it is the date of actual publication (i.e. the act of making it public) which will be the relevant date with effect from which it would come into force. This proposition having been accepted by the Collector (Appeals), he....

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....direct that the Departmental Representatives may report to the Tribunal the date on which the relevant Gazette notification was actually made available to public in this case. It is ordered accordingly. Further, we note that during the course of hearing this application practically the whole case has already been covered and in view of the infirmities which have come to light the matter could be disposed of straightaway subject to consent of both the sides and an appropriate prayer in this regard. 25. With these observations, the application is disposed of." 26. Subsequently the case was fixed for further hearing. During this hearing the learned S.D.R. submitted that the advocate of the appellant had requested that date of publi....