TMI Blog1987 (11) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... granted by the notification dated 1st March, 1979 was rescinded. The Excise Department on 14th December, 1982 informed the petitioners in common with other cigarette manufacturers, of the withdrawal of exemption granted under the notification of 1st March, 1979. After receipt of the communication there ensued some correspondence between the Excise department and the petitioners. The latter, on October 30, 1984, applied to the 2nd respondent for a refund of the amount which they had been forced to pay pursuant to a demand made by the Excise Department officers. Shortly stated, their case was that though the exemption had been rescinded by notification dated November 30, 1982, the said rescinding had came to the knowledge of the petitioners for the first time when they received the letter dated December 14, 1982. It was from this later date, that they could be asked to pay the full Excise duty. Recovering the full duty from them for the period from November 30, 1982 to December 14, 1982, was not warranted. They were entitled to and sought the refund of the amount which come to Rs. 54,40,645.71 P. The claim made by the petitioners was negatived by the 2nd respondent and his reasons f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners the sum of 'Rs. 54,40,642.71 P. The return tendered on behalf of the respondents is to the effect that the notification withdrawing the exemption was published in the Official Gazette on 30th November, 1982. The exemption was not in force after that date. Therefore, whatever be the deficit the petitioners were liable to pay. This liability had been enforced by their officers, and, rightly so. It was not correct to say that the notification rescinding the exemption came into operation only from 14th December, 1982 or 8th December, 1982. 4. The return of the respondents further takes a contention that the petitioners could not have come to this Court without exhausting the statutory remedy of filing an appeal against the order impugned by them. This contention is without merit. The petition raises a pure question of law, and, in any case, this is hardly the time to direct the petitioners to take recourse to statutory remedy, seeing that near about 2 years have expired since the filing of the petition. 5. To turn to the main point, there is no refutation of the letter of the Controller of Publications dated 23rd April, 1983 referred to in the rejoinder filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not known until the morning of May 17." This judgment in Sargant's case was roundly criticized by Prof. C.K. Allen in his Law and Orders (Second Edition) at page 132. The criticism has merited the remark of having "great force" by the Supreme Court in the State of Maharashtra v. Mayer Hans George, reported at A.I.R. 1965, Supreme Court, 722. Rajagopala Ayyangar J. in the said case observed - "We see great force in the learned author's comment on the reasoning in Sargant's case." It may be argued, as it was by the Counsel for the respondent, that the disapproval recorded by Prof. Allen had been approved by the Supreme Court, for which reason, the decision in Sargant's case and all those which followed it should not be accepted by me. Counsel for the petitioners submits that the point was left undecided which is evident from the following passage in the Supreme Court judgment at page 743 :- "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. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs that even the department was not aware of the withdrawal of the exemption until as late as 14th December, 1982. It would be penalising the petitioners in the wider sense, as that expressed in Harla's case. The petitioners had been suddenly called upon to pay or deposit sums totalling lakhs of rupees, for the short payments made on the strength of the exemption notification, the withdrawal of which became known to the department itself as late as 14th December, 1982. A direct decision on the point is the case of G. Narayana Reddy v. State of Andhra Pradesh and Others, 35 Sales Tax Cases, 319. In exercise of the powers under Section 40(1) of the Andhra Pradesh General Sales Tax Act, 1957, the Government by a G.O. altered the third Schedule regarding the rate of tax. The G.O. was published in the Gazette dated December 1, 1966. The Gazette was printed and released to the public only on 12th December, 1966. It was contended before the High Court that the authorities were not entitled to give effect to the notification with effect from December 1, 1966 and that they were entitled to do so only from 25th December, 1966, when the petitioners received the Gazette. The Bench consisting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order 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 then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the official gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient." 7. Now, so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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