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1993 (10) TMI 155
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....g 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 The said notification however stood rescinded vide Notification 304/85, dated 30-9-1985, and because of that the DMT beca....
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....ularly 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....
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....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 M/s. East India Commercial Co. Ltd. v. Collector of Customs - AIR 1962 Supreme Court 1893 = 1983 (13) E.L.T. 1342 (SC), 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....
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.... - 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 M.B. 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 ma....
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....wn it or not, the act of publication becomes complete. 10. The issue raised for determination here, however, is when does a notification issued pursuant to the provisions of Sectin 25 of the Customs Act, becomes effective, and precisely whether the Notification No. 304/85-Customs, 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....
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....e 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 C....
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....on 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 de....
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....ner 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 th....
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....t in M/s. East India Commercial Co. Ltd. v. Collector - AIR 1962 Supreme Court 1893 = 1983 (13) E.L.T. 1342 (SC), 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 conformity 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 uni....
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....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 [Assent per : R. Jayaraman, Member (T)]. - 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, t....
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....n 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, by 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 Governme....