TaxTMI 
TaxTMI 
TaxTMI 
1991 (9) TMI 201
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....hat they have to pay the differential duty in respect of clearance from 30-9-1985 onwards. In their reply to the Inspector, the appellant drew attention to the decision of the Madras High Court in the case of Asia Tobacco Co. Ltd. to the effect that the effective date for any change in customs duty is the date of publication of such notification in the official gazette and not the date appearing on the Notification. The appellant, further, informed that they had written a letter to the Controller of Publications on 8-10-1985 and the latter had informed them vide his letter dated 2-1-1986 that the date of publication of this Notification No. 304/85 dated 30-9-1985 was 1-11-1985. The appellant, therefore, informed that they are liable for payment of differential duty from 1-11-1985 onwards only and not prior to this date i.e. from 30-9-1985 to 31-10-1985. Subsequently, a show cause notice was issued on 16-9-1988 and which was adjudicated by the aforesaid order confirming the demand of duty. 3. The appeal against the Assistant Collector's order was also rejected. The Collector (Appeals) observed after ascertaining the factual position from the jurisdictional Collectors that the decis....
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....n 2-12-1988 will not apply although these notifications are dated 25-11-1988. The Ld. Counsel pointed out that the Public Notice of the Bombay Customs House publishing these notifications was even later by the Public Notice dated 2-12-1985. Therefore, he pleaded that the appellants were liable to pay duty only on and from 1-11-1985, when the notifications became available to the public. The Ld. Counsel, further, argued that the show cause notice issued on 16-9-1988 is time-barred because it seeks to recover differential duty beyond six months relating to the period 30-9-1985 to 1-11-1985. The demand under Sec. 28 has to be issued by the proper officer and the notice issued by the Superintendent in this case is invalid as he is not the proper officer. The Learned Counsel also by the decision of the Tribunal in the case of Haryana Plywood Industries v. Collector of Customs reported in 1991 (51) E.L.T. 119 (Tri.) where also the Tribunal held that the date on which the notification is made available for sale to the public is the date from which the rates notified therein can be applied. It was, therefore, pleaded that the stay be granted and appeal be allowed. 5. Sh. M. Jayaraman, the....
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....e." The reason why they sent such a letter to the Controller of Publication is stated in their appeal as follows: "The appellants say that in or about the first week of October, 1985, the Appellants learnt that two Notifications bearing No. 304/85 Cus. and 305/85-Cus. both dated 30-9-1985 (hereinafter referred to as "the said Notifications") were issued rescinding the said Notification No. 35/83-Cus. However, as the copies of the said two Notifications were not made available to the Appellants, the Appellants, by their letter dated 8-10-1985 addressed to the Assistant Controller (Periodicals), Government of India, Ministry of Works and Housing, Department of Publication, New Delhi, enquired as to when the Gazette of India containing the said two Notifications was made available to the Public or is likely to be made available." 7. The above would show that the appellants were aware on 8-10-1985 of the issue of Notifications 304 & 305/85 and the effect thereof, yet it is significant that the appellants continued to pay duty throughout October under unamended notification and when ultimately the Department asked for the differential duty by way of Inspector's letter dated 27-....
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....timation of a proceeding without involving any judicial determination. See in this connection Hon. Calcutta High Court judgment in the case of Tarek Nath Sen v. U.O.I. - AIR 1975 Cal. 337. The appellants are relying upon a Bombay Cus. House Public Notice to say that the Supdt. Cx. is not empowered to issue notice under Sec. 28 C.A. '62 whereas they should produce relevant notification udder Sec. 2(34) C.A. '62 issued by the jurisdictional Collector of Central Excise, Pune which they have failed to do. Nor can the notice be considered, for the reasons already given supra, to be one issued alleging suppression and invoking the longer period under Sec. 28 C.A. '62. Therefore, there is no force in the agruments that the Superintendent was incompetent to issue show cause notice. Another aspect, which is of same relevance, is that the Asia Tobacco decision of the Madras High Court, on being confirmed by the Division Bench of that High Court, has been challenged before the Supreme Court by way of SLP by the Department with an application for stay, although there is no information so far about the result of the stay application nor of the SLP. The Collector has also observed that another B....