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High Court of Judicature at Madras
THE HONOURABLE OFFICIATING CHIEF JUSTICE MR. MOHAN & THE HONOURABLE MR. JUSTICE S. RAMALINGAM
Union of India - Appellant
Versus
Asia Tobacco Company Limited - Respondents
Writ Appeal No. 1051 to 1053 of 1984
Decided On : 10 July 1989
NOTIFICATION - AVAILABILITY OF GAZETTE - CENTRAL EXCISE RULES, 1944 - RULE 8 - NOTIFICATION NO. 30/79-CENTRAL EXCISE, DATED 1-3-1979 - NOTIFICATION NO. 284/82-C.E., DATED 30-11-1982 - NOTIFICATION BECOMES EFFECTIVE ONLY WHEN MADE KNOWN TO PUBLIC BY MAKING COPY OF GAZETTE AVAILABLE FOR SALE - NOTIFICATION NO. 284/82-C.E., DATED 30-11-1982 BECAME EFFECTIVE ONLY FROM 8-12-1982, THE DATE ON WHICH IT WAS MADE AVAILABLE FOR SALE TO PUBLIC.
Fact of the Case:
Petitioner, a manufacturer of cigarettes, was granted an exemption from excise duty under Notification No. 30/79-Central Excise, dated 1-3-1979. This exemption was withdrawn by Notification No. 284/82-C.E., dated 30-11-1982. Petitioner paid the full excise duty for the period between 30-11-1982 and 5-12-1982 under protest, claiming that they were not aware of the withdrawal Notification until 7-12-1982. Petitioner sought a refund of the differential duty paid, arguing that the withdrawal Notification should only be effective from the date it was made available to the public, which was 8-12-1982, as per a letter from the Controller of Publications.
Finding of the Court:
The court held that a Notification issued by the Government under Rule 8 of the Central Excise Rules, 1944, could be enforced only from the date it was made known to the public by making a copy of the Gazette available for sale to the public. In this case, the withdrawal Notification (Notification No. 284/82-C.E., dated 30-11-1982) was made available for sale to the public only on 8-12-1982, as evidenced by a letter from the Controller of Publications. Therefore, the withdrawal Notification became effective only from 8-12-1982.
Issues: 1. Whether a Notification issued by the Government under Rule 8 of the Central Excise Rules, 1944, can be enforced before it is made known to the public by making a copy of the Gazette available for sale to the public? 2. Whether the withdrawal Notification (Notification No. 284/82-C.E., dated 30-11-1982) became effective from the date it was published in the Gazette or from the date it was made available for sale to the public?
Ratio Decidendi: The court relied on several precedents, including G.Narayana Reddy v. State of Andhra Pradesh and Yemnigarur Spinning Mills Ltd. v. State of Andhra Pradesh, which held that a Notification, which has civil consequences, would take effect only when it is made known to the public by making a copy of the Notification printed and published in the Gazette and available for sale to the public. The court found that the withdrawal Notification was not made available for sale to the public until 8-12-1982, and therefore, it became effective only from that date.
Final Decision: The court dismissed the appeals filed by the respondents (the Central Government and its officers) and upheld the orders passed by the High Court in the writ petitions. The court directed the respondents to refund the differential duty collected from the petitioner for the period from 30-11-1982 to 5-12-1982, and awarded costs of Rs. 500/- in each of the writ appeals to the petitioner.
S. RAMALINGAM, J
These writ appeals are against the common order made in W.P. Nos. 6048, 6049 and 6050 of 1984.
2.The facts of the case are as follows:- The respondent in the writ appeals, who is the petitioner in the writ petitions and who, for the sake of uniformity, will hereinafter be referred as to the petitioners manufactures cigarettes on which excise duty is payable. By an exemption Notification No. 30/79-Central Excise, dated 1-3-1979, made under Rule 8 of the Central Excise Rules, 1944, the Central Government exempted cigarettes falling under a particular description from so much of the duty of excise leviable thereon, as is in excess of the duty specified in the corresponding entry in Column (2) of the Notification. The petitioner had the benefit of this exemption Notification and was clearing the manufactured cigarettes on payment of the concessional excise duty.
3.However, by a Notification No. 284/82-C.E., dated 30-11-1982, hereinafter referred to as the withdrawal Notification, the earlier Notification No. 30/79-Central Excise, dated 1-3-1979 was rescinded.
4.On a demand being made for payment of full excise duty without any concession for the period between 30-11-1982 and 5-12-1982, the petitioner paid the amount without prejudice to their rights and contentions. The petitioners pleaded that they were not aware of the Notification No. 284/82-C.E., dated 30-11-1982 till 7-12-1982 and, therefore, they are not liable to pay the amount as demanded towards differential duty in a sum of Rs. 10, 04, 661/-.
5.The petitioners applied to the Controller of Publications, Department of Publications, Government of India, New Delhi, on 23-4-1983, requesting information as to the exact date on which the Gazette of India containing Notification No. 284/82-C.E., dated 30-11-1982 was actually printed, published and made available to the public. In response thereto, the office of the Controller of Publications, informed the petitioners that the Gazette of India, Extraordinary, Part II, Section III, sub-sec. (1) dated 30-11-1982 containing GSR Notification No. 284/82, Central Excise, was placed on sale for public on 8-12-1982.
6.Armed with the above letter of the Office of Controller of Publications, the petitioners submitted a representation dated 9-5-1983 to the Assistant Controller of Central Excise that the Notification No. 284/82 could be made applicable only from the date on which it was made available to the public by sale viz., on 8-12-1982 and the duty payable by the petitioner for the period from 30-11-1982 to 7-12-1982 should be based on the earlier Notification viz., Notification No. 30/79-C.E., dated 1-3-1979 under which a concession was available. This request of the petitioner was declined in the letter of the Assistant Collector of Central Excise dated 19-9-1983. Further representations made by the petitioners to the hierarchy of departmental authorities were of no avail.
7.It was in these circumstances, the petitioners filed W.P. No. 6048 of 1984 for a writ ofmandamusto direct the respondents to refund all moneys collected in pursuance of Notification No. 284/82-C.E., dated 30.11.1982 for the period from 30.11.1982 to 7.12.1982 on clearances made during such period. W.P. No. 6049 of 1984 was filed for a writ of declaration declaring that the Notification No. 284/82 will be effective only from 8.12.1982. The prayer in W.P. No. 6050/84 was for the issue of a writ ofcertiorarito quash the order dated 22-2-1984 issued by the second respondent declining the request of the petitioners, as aforesaid.
8.In answer to the above prayers, the respondents in the writ petitions, who are the appellants herein and who will hereinafter be referred to as the respondents, contended that once the Notification is published in the Gazette of India on one date it should be legally presumed to have been given publicity on that date itself and would also be deemed to have come into force on the date mentioned in the copy of the Gazette
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