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1998 Supreme(SC) 31
1998(1) Supreme 189
Supreme Court of India
(Customs Excise, Gold (Control) Appellate Tribunal, New Delhi)
S.C. Agrawal & G.T. Nanavati JJ.
Collector of Central Excise -Appellant
versus
New Tobacco Co. etc. etc. -Respondents
Civil Appeal No. 4569 of 1989
With
C.A. Nos. 4513-14/92, 1658-61/94, 1729/93, 3111/93, 7684/96, 7685/96, 7719-21/96, 4913-15/93, 10001/95, 5423/93, 7534-35/95
And
Civil Appeal No. 49 of 1998
(Arising out of SLP (C) No. 19566/94)
Decided on 9-1-1998
Counsel for the Parties :
For the Appearing Parties, R. Mohan, S., J. Vellapalli, H.N. Salve, Sr. Advocates, R.N. Verma, V.K. Verma, D.N. Mehta, R.C. Mishra, Ms. Meera Agarwal, K.J. John, J.D. Jain, Kanwaljit Kochar, S.K. Jain, Ravinder Narain, Ashok Sagar, Ms. Punita Singh, Mrs. Sonu Bhatnagar, Ms. Rabena Nath, Mukul Mudgal, Vikram S. Nankani, Ms. Bina Gupta, Ms. Rakhi Ray, Ms. T. Sudha, Ms. Manjula Gupta, Ms. Lata Krishnamurti, D.S. Mehra, Ms. Janki Ramachandran, K.K. Mani, C.V. Subba Rao, Advocates.
Important Point
Printing the notification in the official Gazette without making it available for circulation to the concerned public or placing it for sale to the said public would certainly not satisfy the idea of notification in the legal sense.
Headnote:Constitution of India, 1950-Article 136-Central Excise and Salt Act, 1944-Sections 38, 11-B and 35-L (b)-Central Excise Rules -Rule 8-Respondents manufacturer of cigarettes paid excise duty at rate fixed by notification of 11th March, 1979-Notification rescinded-New rates prescribed by notification of 30th November, 1982-Show-cause notice to respondents to pay differential amount between duty short paid and duty payable in terms of new notification-Demand confirmed by Assistant Collector-Order upheld by Collector (Appeals)-Tribunal held publication cannot be equated with mere printing and it is availability of printed material to general public that constitutes required publication-Excess recoveries of duty cannot be retained-Appeal-Central Excise Notification except provided otherwise when it is so issued to make it known to public-Publication if through Gazette mere printing of it in Gazette not enough unless Gazette containing notification made available to public-View taken by Tribunal correct.
Held : We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published. (Para 10)
Judgment
Nanavati, J.-In this batch of cases, the question that arises for consideration is whether a Central Excise notification comes into force with effect from the date on which it is printed in the Government Gazette or from the date it is made available to public.
2. To illustrate the circumstances in which this question arises, we will state the facts of Civil Appeal No. 4569 of 1989. The company involved in this appeal is the New Tobacco Company Limited. It was earlier known as Duncan Tobacco Company. It is engaged in manufacturing cigarettes. Since 1979, it used to pay duty on cigarettes manufactured by it at the rate fixed by Central Excise Notification No. 30/79 dated 1st March, 1979, as amended from time to time. It was rescinded with effect from 30th November, 1982 by Notification No. 284/82-C dated 30th November, 1982, which prescribed new rates of excise duty. Between 30th November, 1982 and 8th December, 1982, the Company cleared 79,456 million cigarettes and paid duty thereon at the rate fixed by the Notification dated 1st March, 1979, as it did not know that a new notification was issued on 30th November, 1982. As the company had paid duty at a lesser rate, a Show Cause Notice dated 22nd December, 1982, was issued calling upon the Company to show cause why it should not pay the differential amount between the duty short paid and the duty which had become payable in terms of the new notification dated 30th November, 1982. The Assistant Collector by his Order dated 11th April, 1983, confirmed the said demand. The order of the Assistant Collector was upheld by the Collector of Central Excise (Appeals) on 4th October, 1985. It then appealed to the Customs, Excise and Gold (Control) Appellate Tribunal. Only contention pressed by the Company therein was that the Notification dated 30th November, 1982 was made available to the public on 8th December, 1982 and, therefore, duty at the notifications issued under the Act shall be published in the official Gazette. Thus publication in the official Gazette is the only statutory requirement. The Notification is dated 30th November, 1982 and the Gazette in which it was printed also bears the same date, i.e., 30th November, 1982 and, therefore, that date should be regarded as the date of its publication. On the other hand, it was contended by the learned counsel for the respondents that publication cannot be equated with mere printing and it is the availability of the printed material to the general public that constitutes publication as required by the statute and the rules of natural justice.
3. Section 38 of the Act provides that all the rules made and notifications issued under the Act shall be published in the official Gazette. So, the requirement of Section 38 is publication of the rules and the notifications in the official Gazette. The dictionary meaning of the word ‘publish’ as given in Webster’s Comprehensive Dictionary, International Edition, is “(1) To make known or announce publicly; promulgate; proclaim. (2) To print and issue to the public. (3) To communicate to a third person.” According to the Legal Glossary, published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India in 1992, it means “to make generally accessible or available; to place before or offer to public; to bring before the public for sale or distribution”. Thus the word ‘publish’ connotes not only an act of printing but also further enhanced rate could be lawfully demanded from it only from 8th December, 1982. In support of its contention the company had produced a letter dated 2nd August, 1983 obtained by its sister concern M/s. National Tobacco Company from the Controller of Publications, Department of Publication, Ministry of Finance, Government of India, which stated that Notification No. 284/82 dated 30th November, 1982 was placed for sale to the public on 8th December, 1982. The Tribunal relying upon the said letter and the decision of t
