Publication of Notifications under section 25 of the Customs Act, 1962 comes into effect from the date they are made available to the public, not from the date of printing or the date mentioned in the Notifications.

S.B. Sinha, A.C.J.

1. The matter was referred to this Bench keeping in view the importance of the question involved in this Appeal as to from which date two Notifications issued under section 25 of the Customs Act, 1962 (hereinafter referred to as 'the Act) would come into effect i.e. from the date of printing or from the date first made available for sale to the public or the date mentioned in the Notifications irrespective of when the Notifications are printed in the Official Gazette or the date of sale thereof?

2. The fact of the matter is as follows:

The respondent herein placed an order for generating set on an exporter of Germany on 6th July, 1989 for a price of Rs.2,00,90,000/-. A Notification bearing No. 59/89 was issued on 1st March, 1989, in terms whereof customs duty of such generator was payable at a maximum of 30 per cent. Another Notification bearing No. 144/90 was published on 20th March, whereby pegging applicable auxiliary duty was fixed at 30 per cent ad velorem. On or about 11th November, 1990, the respondent No.1 filed an Advance Bill of Entry for home consumption which was recorded on 18.2.1990. Another Notification bearing No. 296/90 superseeding Notification No. 59/89 was issued on 10th January, 1991, in terms whereof customs duty was fixed at 35% and which was put on for sale to general public by Department of Publication.

3. On 14th January, 1991 Notification No. 287/90, Customs dated 15th December, 1990 superseeding Notification No. 144/90 was issued, whereby auxiliary duty for sale was filled at 50% ad velorem. A provisional assessment was made on 31st January, 1991 fixing the customs duty at 85% in terms of Notification No. 296/90 and auxiliary duty at 50% was fixed in terms of Notification No. 287/90 totaling Rs. 2,48,96,500/-. The appellant thereafter was levied with an excess duty of Rs. 73,22,500/-. The same was provisionally assessed and paid by the respondents under protest.

4. On 5th February, 1991 the respondent wrote to the Controller of Publications requesting him to supply a copy of the Gazette Notification No. 287/90 dated 15.12.1990 and Notification No. 296/90 dated 18.12.90 whereafter writ application was filed. The said writ application was allowed by an order dated 15.5.1992. Thereafter, the instant appeal was preferred.

5. The learned Judges constituted Division Bench of this Court, however, differed in their opinion. Keeping in view the importance of the question involved, this reference was made to the Full Bench.

6. Mr. Roy Chowdhury, the learned counsel appearing on behalf of the, appellant, inter alia, submitted that in view of the decisions of the Supreme Court in Pankaj Jain Agencies vs. Union of India, reported in A.I.R. 1995 SC 360, it must be held that the Notification would come into operation on the date of its publication. The learned counsel submits that although in two latter judgments of the Apex Court being Collector vs. New Tobacco Co., reported in 1998(8) SCC 250 : 1998(97) E.L.T. 388 and Ganvare Nylons Ltd. vs. Collector, reported in 1998(100) E.L.T. 321, it has been held that the date when a Notification comes into force is the date on which it is offered for sale to the public, the said decisions should not be relied upon keeping in view the fact that the earlier decision of Pankaj Jain Agencies (supra) had not been considered by the Apex Court in its latter judgment.

7. According to the learned counsel as and when a Notification issued under the Customs Tariff that binds the hands of the Customs Officer, he has no other option but to realise custom duties. Mr. Roy Chowdhury would urge that an officer of the Customs Department would be bound by such Notification.

8. Mr. Ghosh, the learned senior counsel appearing on behalf of the respondents, on the other hand, has relied on the aforementioned two decisions of the Apex Court in Collector of Central Excise vs. New Tobacco Co. & Ors., reported in 1998 (8) SCC 250 and Garware Nylons Ltd. vs. Collector, reported