TMI Blog1984 (8) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ", reads as follows : " Partial exemption to cigarettes.-In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excises Rules, 1944, read with subsection (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) (hereinafter referred to as the " Addition Duties of Excise Act "), the Central Government hereby exempts cigarettes of the description specified in column (1) of the Table hereto annexed and falling under sub-item (11)(2) of item No. 4 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) (hereinafter referred to as the " Central Excises Act "), from so much of the duty of excise leviable thereon both under the Central Excises Act and the Additional Duties of Excise Act, as is in excess of the duty specified in the corresponding entry in column (2) thereof. TABLE --------------------------------------------------------------------------------------------------------------------------------------------------- Description Rate of duty ----------------------------------------------------------------------------------------------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a letter to the petitioner as follows : " OFFICE OF THE SUPERINTENDENT OF CENTRAL EXCISE, HOSUR III RANGE, HOSUR. O.C. No. 1554/82 Dated 6-12-1982. To M/s. Asia Tobacco Company Limited, Sipcot Industrial Complex, Hosur. Gentlemen, Subject : Central Excise-Cigarettes-Issue of Notification No. 284/82-C.Ex. dated November 30, 1982-Differential duty on the cigarettes cleared with effect from November 30, 1982-Demands issued-Regarding. You are hereby informed that Notification No. 30/79 dated March 1, 1979, prescribing concessional rate of duty for cigarettes has been rescinded by Notification No. 284/82-C.Ex. dated November 30, 1982. Consequently, the clearances of cigarettes effected from November 30, 1982, based on the assessable value claimed in your price list dated November 12, 1982, on provisional basis would have been cleared on tariff rates of duty applicable on cigarettes on provisional basis pending issue of orders by the Assistant Collector on the above price list filed by you. So far, with effect from November 30, 1982, to December 5, 1982, you have cleared 62064 thousands of scissors brand cigarettes. So you are hereby requested to pay the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Government of India in the Ministry of Finance (Department of Revenue) No. 30/79-Central Excise dated March 1, 1979 was not made available to the public until some time in the first week of December, 1982. We shall be most grateful if you would kindly let us know the exact date on which the Gazette of India containing the above notification was actually printed and the date on which the same was made available to the public. Please treat the matter as most urgent. Yours faithfully, I.T.C. Limited. Sd. Accountant (ITD)." On April 23, 1983, a reply was received from the Assistant Controller (Periodicals) for Controller of Publications, and the said reply runs as follows : " GOVERNMENT OF INDIA Department of Publication, Civil Lines, Delhi-110 054. No. Gaz/81-179/83 23rd April, 1983 To Accountant, I.T.C. Limited, Virginia House, 37, Chowringhee, Calcutta. Dear Sir, With reference to your letter No. LEG/381 dated April 23, 1983, regarding the date of availability for the public of the Gazette of India, Exty., Pt. II, Sec. III, sub-s. (1) dated November 30, 1982, No. GSR Notification No. 284/82-Central Excise. In this connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated above, while working the differential duty payable for the period November 30, 1982, to December 7, 1982, the same should be calculated taking into consideration the date applicable as per the earlier notification, viz., No. 30/79 of March 1, 1979. Thanking you, Yours faithfully, for ASIA TOBACCO CO. LIMITED Sd. K. S. Murthy, Factory Manager." The second respondent replied on September 19, 1983, in the following terms : "Office of the Assistant Collector of Central Excise, Hosur Division, Hosur - 635 109. C. No. V/4/30/103/82-T3 19th September, 1983 From The Assistant Collector of Central Excise, Hosur Division, Hosur. To M/s. Asia Tobacco Co. Limited, No. 35, Rajaji Nagar, Hosur-635 126. Gentlemen, Sub : CE-Cigarettes-Issue of Notification No. 284/82 dated November 30, 1982, rescinding Notification No. 30/79 dated March 1, 1979-Effect of the Notification-Your representation regarding. Ref : Your letter No. Ex/280/1323/KSM dated May 9, 1983. Your representation regarding the implementation of the tariff rate of duty on cigarettes as per the Notification No. 284/82-CE dated November 30, 1982, will take effect onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic as stated in the letter No. GAZ/Ex. 1179/83 dated April 23, 1983, from the Controller of Publications, Government of India, Department of Publications, Civil Lines, Delhi-110 054, a photo copy of which is enclosed. In view of the above, we would request you to confirm that the differential duty calculated by us for the period from November 30, 1982, to December 7, 1982, taking into consideration the rate applicable as per the earlier Notification No. 30/79 of March 1, 1979, is in order. Thanking you, Yours faithfully, For Asia Tobacco Co. Limited, Sd. K. S. Murthy, Factory Manager." The second respondent, in his turn, would maintain that the differential duty for the period from November 30, 1982, to December 7, 1982, should be calculated only taking note of the Withdrawal Notification and he wrote a letter to this effect to the petitioner on February 22, 1984, as follows : "Office of the Assistant Collector of Central Excise, Hosur Division, Hosur-635 109 C. No. V/4/30/103/82-T3 22nd February , 1984 From The Assistant Collector of Central Excise, Hosur Dvn. To M/s. Asia Tobacco Co. Ltd., No. 35, Rajaji Nagar, Hosur-635 126. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Central Excise, Hosur Dvn., for favour of information with reference to this C. No. V/4/30/103/82-T3 dated February 22, 1984." This was followed by a further communication by the third respondent on April 2, 1984, in the following terms. "Office of the Superintendent of Central Excise, Hosur IV Range, Hosur-635 126. O.C. No. 165/84 Dated April 2, 1984. To M/s. Asia Tobacco Company Ltd., Hosur. Gentlemen, Sub.: CE-Cigarettes T.I.4(II)(2)-Effective date for Notification No. 284/82-CE dt. 30-11-82-Differential duty for the period 30-11-82 to 7-12-82-Issue of demand-Regarding. You are hereby requested to pay the differential duty involved on the clearances of 62,064 M cigarettes effected during November 30, 1982, to December 7, 1982, amounting to Rs. 4,36,611.79 (details given below) immediately as your representation regarding the effective date of Notification No. 284/82-CE dated November 30, 1982, is not entertained by the Collector of Central Excise, Coimbatore. The amount should be paid in the following manner: 1. Immediate payment of 50% of the above mentioned amount, vide TR 6 challan, and 2. A bank guarantee for the rest of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and notification in the Official Gazette has got a legal and factual potency and the mere printing of the Official Gazette without making it available for circulation or putting it on sale for public would not make the notification effective either for the purpose of exemption or for the purpose of withdrawal of the exemption. The facts delineated above cannot be disputed and they are matters of record. The factual allegations with regard to the Withdrawal Notification being placed on sale for the public only on December 8, 1982, have been expressed in paragraph 10 of the affidavits filed in support of the writ petitions and they run as follows : " I state that M/s. ITC Limited for whom the petitioner manufactures the cigarettes addressed a letter to the Controller of Publications, Department of Publications, Government of India, New Delhi, on April 23, 1983, requesting information on the actual date of publication of the Gazette which contained Notification No. 284/82 dated November 30, 1982. The Controller of Publications, vide his letter dated March 23, 1983, addressed to the Accountant, ITC Limited, stated that Notification No. 284/82 dated November 30, 1982, was placed on s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraphs 19 to 22, I submit that it is settled law that a subordinate legislation comes into effect in accordance with the mandatory directions contained in the parent Act or the relevant rules, as the case may be. It is respectfully submitted that the judgments cited by the petitioner are distinguishable. In the cases cited, the Hon'ble courts were interpreting the provision of law with reference to the conditions prescribed under relevant Act to give effect to the delegated legislation. I submit that the provisions of the Central Excises Act, 1944, and the Rules made thereunder are clear in this respect. As the notification in question was issued in exercise of the powers conferred under rule 8(1), the provisions/conditions contained therein has to be strictly construed to give effect to the notification. I state that the words 'publish in Official Gazette' and terms I put up for sale to public are not synonymous. Offering for sale to public is a subsequent step which cannot be imported into the Act unless otherwise specifically provided for in the Act itself. The notification in question was published on November 30, 1982, in the Gazette of India (Extraordinary) and takes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en effect to only from the date on which it was published and not retrospectively. As regards the decisions cited, I state that the statutory provisions considered in those cases are not in pari materia with the provisions of rule 8(1) of the Central Excises Rules, 1944, and hence the present case is distinguishable." Thus, we find that the respondents do not accept the stand of the petitioner that merely because the Official Gazette containing the Withdrawal Notification was placed on sale for the public on December 8, 1982, it would come into effect only on and from that date. Hence, the moot question that arises for consideration in these writ petitions is as to when the Withdrawal Notification must be deemed to have become effective and enforceable. Rule 8(1) of the Rules empowers the Central Government from time to time, by notifications in the Official Gazette, to exempt, subject to such conditions as may be specified in the notification, any excisable goods from the whole or any part of duty leviable on such goods. There cannot be any dispute that any notification withdrawing the exemption must also go through the same process of getting notified in the Official Gazette. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative, it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C. K. Allen of the reasoning in Johnson v. Sargant and Sons [1918] 1 KB IO 1, was not averse to apply the ratio enunciated by Bailhache J. to the facts of the case before the Supreme Court. I feel obliged to refer to the following passages occurring in the judgment of Rajagopala Ayyangar J. (p. 743): " Taking the present case, the question would immediately arise, is it to be made known in India or throughout the world, for the argument on behalf of the respondent was that when the respondent left Geneva on November 27, he was not aware of the change in the content of the exemption granted by the Reserve Bank. In a sense, the knowledge of the existence or content of a law by an individual would not always be relevant, save on the question of the sentence to be imposed for its violation. It is obvious that for an Indian law to operate and be effective in the territory where it operates, viz., the territory of India, it is not necessary that it should either be published or be made known outside the country. Even if, therefore, the view enunciated by Bailhache J. is taken to be correct, it would be apparent that the test to find out effective publication would be publication in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lishing and making known by publication has been taken note of by the learned judge. In Jagjit Singh v. State, AIR 1968 Raj 24, the argument that printing of a notice in the Official Gazette, if it was not out of the press, could not be deemed to be a good notice for the public at large, was countenanced to be one with considerable force, though the matter has got to be disposed of on other points by the court. In Narayana Reddy v. State of Andhra Pradesh [1969] 1 An WR 77, Chinnappa Reddy J. as he then was, observed as follows: " The idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour of totalitarianism and of the gestapo. It is repugnant to the principles of justice, freedom, equality and fraternity, cherished by all lovers of democracy and enshrined in our Constitution. Subordinate legislation to take effect must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will take effect from the date of such publication or promulgation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to a number of pronouncements, it was held that the notification was effective and enforceable only on and from July 1, 1971, the date of its publication in the Andhra Pradesh Gazette and not with effect from any earlier date. Jeevan Reddy J., speaking for the Bench, observed as follows (p. 316): "Now, for an effective administration of law, it is essential to observe the rule that ignorance of law is no excuse. But before the knowledge of of law is attributed to every member of the public, the law must be published or promulgated for general information. " The learned judge also referred to the observations of Chinnappa Reddy J., as he then was, in the earlier case [1975] 35 STC 319 (AP), extracted above. In State of MP v. Ram Ragubir Prasad Agarwal, AIR l979 SC 888, while construing the set of expression " publish the same in such manner as may be prescribed " occurring in s. 3 of the M. P. Prathamik Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam (13 of 1973), Krishna Iyer J., observed as follows (p. 895): " To publish a news item is to make known to people in general; 'an advising of the public or making known of something ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the third respondent dated December 6, 1982, which obviously was received by the petitioner on December 7, 1982, the petitioner was put on notice of the withdrawal notification. Hence, the Withdrawal Notification must be held to be effective so far as the petitioner is concerned only from December 7, 1982. The consequence of lack of due notification is that the withdrawal notification became effective so far as the petitioner is concerned only on and from December 7, 1982. It had no legal efficacy anterior to that date. The respondents have not denied the factual position that the Official Gazette containing the Withdrawal Notification, though dated November 30, 1982, was, in fact, placed on sale for the public only on December 8, 1982. The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words " publish in Official Gazette " and the words " put up for sale to public " are not synonymous and offering for sale to the public is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental rights and statutory rights to give the consequential relief by ordering repayment of moneys realised by the Government without the authority of law. It would suffice the purpose if the following principles recognised by Krishna Iyer J., in Shiv Shanker Dal Mills v. State of Haryana, AIR 1980 SC 1037, are adverted to (pp. 1039, 1038) " Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order such as public interest dictates and equity projects." " Where public bodies, under colour of public laws, recover people's moneys, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of alternative remedy since the root principle of law married to justice, is ubi jus ibi remedium." However, Mr. C. Krishnan, learned additional Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner had stated that a copy of the Withdrawal Notification had not been handed over to it. The respondents, on the other hand, were also insisting under a patently erroneous misconception of law that the Withdrawal Notification was effective even from November 30, 1982, though it was not duly notified in the eye of law, and they were prompted to insist for, demand and collect the duty only on this erroneous basis in law. Hence, on the date of payment, both the parties were suffering from a misconception of the legal position. Viewed in this light, the time-limit, if any, prescribed in the special statute which may govern the contingencies arising under it only need not be counted, and the ordinary law of limitation could be applied, on the basis that the levy and collection of duty are the result of misconception in law and, if so applied, there could not be any time bar. This is apart from the factual contention on behalf of the petitioner that even under the Act, time has not run out. In any event, once it is found that the levy and collection of duty are invalid in, law, or in other words, have no sanction in law on the basis of the declaration that the Withdrawal Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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