VERY IMPORTANT POINT
Notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required.

Headnote:Customs Act, 1962-Section 25 -Notifications issued under-When would come to effect-Notification would come into operation as soon as it is published in Official Gazette and no further publication is required-Non-availability of Gazette, carrying the notification, in circulation not ground to hold that it has not come into effect on date of publication (per B.N. Kirpal & M.B. Shah, JJ.)-Above view needs to be confined in its application to civil liability only-Non-availability of Gazette may provide foundation for defence plea of innocence where mens rea is an ingredient offence committed by breach of notification-Issue regarding criminal liability left open (per R.C. Lahoti, J).
       Held :
       Per B.N. Kirpal & M.B. Shah, JJ.
       Section 25 of the Customs Act empowers the Central Government to exempt either absolutely or subject to such conditions, from the whole or any part of the duty of customs leviable thereon by a notification in Official Gazette. The said notification can be modified or cancelled. The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing Notification into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated. Additional requirement is that under Section 159 such notification is required to be land before each House of Parliament for a period of thirty days as prescribed therein. Hence, in our view State of Maharashtra v. Maver Hans George, (1965) 1 SCR 123 which is followed in the Pankaj Jain Agencies case represents the correct exposition of law and the Notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Gazette of India i.e. the date of publication of the Gazette. Apart from prescribed requirement under Section 25, usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement. (Para 11)
       It is established practice that the publication in the official gazette, that is, Gazette of India is ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquaint himself with the contents of the notification published in the gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill No. 21 of 1998. Notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. (Paras 14 & 17)
       Per R.C. Lahoti, J.-(Concurring) :
       The view so taken needs to be confined in its application to civil liability only and cannot be made a rule of universal application. There may be cases where on account of breach of a rule made or notification issued in exercise of delegated power to legislate, a person may incur criminal liability. Such cases can again be divided into two classes : (i) where mens rea is an essential ingredient of the offence; (ii) where expressly or by necessary implication mens rea is ruled out as an ingredient of the offence. Actus non facit reum, nisi mens sit rea (the intent and act must both concur to constitute the crime). The general rule is that there must be mind at fault before there can be a crime. Whether or not mens rea is an essential ingredient of an offence would depend on the object and purpose of a Statute and the phraseology employed by the Legislature in defining the offence. The doctrine that mens rea is an essential ingredient in every offence has three recognised exceptions : (i) cases not criminal in any real sense but which in the public interest are prohibited under a penalty; (ii) public nuisance; and (iii) cases criminal in form but which are really only a summary mode of enforcing a civil right. Non-availability of Gazette carrying the notification may provide foundation for a defence plea of innocence where mens rea is an ingredient of offence committed by breach of notification. Where mens rea is not an ingredient, want of circulation of Gazette may still be a reason for leniency in punishment. These are the questions which need to be left open. (Paras 21, 22, 24 & 25)

JUDGMENT

Shah, J.-Two Judges Bench of this Court by order dated 15th October, 1999 has referred this matter to a larger Bench by observing thus :-

"It appears that there is a conflict in the ratio of the decisions of this Court in M/s. Pankaj Jain Agencies v. Union of India and others [1994(5) SCC 198], Collector of Central Excise v. New Tobacco Co. and others [1998(8) SCC 250] and I.T.C. Limited v. Collector of Central Excise, Bombay [1996(5) SCC 538] is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench".

2. Before referring to the said decisions, we would narrate few facts involved in the matter.

Respondent admittedly imported a consignment of Green Beans. (Pulses) weighing 505-505 M.T. vide Invoice No. 14/099 dated 31.12.1986. They have filed bill of entry for the same on 5.2.1987. The importer claimed clearance of the said goods free of duty on the basis of Exemption Notification No.129/76-Cus dated 2.8.1976. However, it was pointed out that on 4.2.1987 the said notification was amended vide Notification No. 40/87-Cus, whereby basic duty @ 25 was levied. As the duty was levied @ 25 , importer filed Writ Petition No. 535 of 1987 in the High Court of Bombay contending inter alia that the said notification was not duly published and that it was not in force on the date. A Division Bench of the High Court of Bombay accepting the said contention on the basis of Full Bench decision of the said Court in the case of Apar (P) Ltd. v. Union of India and others1 allowed the writ petition. Hence the present appeal by the State.

3. At the outset, we may state that in appeal filed before this Court the judgment of the Full Bench of the High Court of Bombay in Apar (P) Ltd. s case (supra) was set aside [Re: Union of India v. Apar (P) Ltd.2].

4. A copy of Original Extraordinary Gazette of India dated February 4, 1987 [Part-II-Section 3-Sub-section (i)] is produced for our perusal. The said notification reads as under :-

"MINISTRY OF FINANCE

(Department of Revenue)

New Delhi, the 4th February, 1987

NOTIFICATION

No. 40/87-CUSTOMS

G.S.R. 81(E).-In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following amendment in the notification of the Government of India in the Department of Revenue and Banking No. 129/76-Customs, dated the 2nd August, 1976, namely :-

In the said notification, for the words "from the whole of the duty of customs leviable thereon which is specified in the said First Schedule" the words "from payment of so much of that portion of the duty of customs, which is specified in the said First Schedule as is in excess of twenty five per cent ad valorem" shall be substituted."

5. The contention is-the aforesaid Notification was not made available to public at large and, therefore, on the basis of the said Notification customs duty cannot be levied. The learned counsel for the appellant relied upon the decision in M/s. Pankaj Jain Agencies v. Union of India and others3 and the learned counsel for the respondent-importer has relied upon the decision in Collector of Central Excise v. New Tobacco Co. and others4 in support of their respective contentions.

6. In Pankaj Jain Agencies (supra), this Court considered similar contention with regard to the Exemption Notification issued under Section 25 of the Customs Act, 1962 and held that there was no substance in the contention that notwithstanding the publication of the notification in the Official Gazette there was yet a failure to make law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability. For this purpose Court referred to Section 25(1) of the Customs Act, which reads as under:-

"25. Power to grant exemption from duty.-(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by

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2000 Supreme(SC) 413

VERY IMPORTANT POINTNotification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required.

Cases Referred (7)

VERY IMPORTANT POINT
Notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required.