TMI Blog1991 (9) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... .). In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 (Now referred as 'the said Rules') read with sub-Section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the Central Government issued a Notification No. 30/79-C.E., dated 1st March, 1979 exempting Cigarettes of the description specified in Column (1) of the Table annexed thereto, and falling under sub-item 11(2) of Item No. 4 of the first schedule to the said Act, from so much of the duty of excise leviable thereon both under the said and the Additional Duties on Excise Act, as is in excess of the duty specified in the corresponding entry in column (2) thereof. The said Notification granted partial exemption to cigarettes. By another Notification No. 284/82-C.E., dated 30th November, 1982 also issued by the Central Government in exercise of powers conferred by the said sub-rule (1) of Rule 8 of the said Rules, read with sub-section (3) of Section 3 of the said Additional Duties of Excise Act, the said Notification No. 30/79-C.E., dated 1st March, 1979 was rescinded. On 14th December, 1982, the Superintendent of Central Excise, Range IX, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount, according to the 1st Respondents, wrongly recovered from the 1st Respondents as differential duty in respect of clearance of Cigarettes between 30th November, 1982 and 13th December, 1982. 4. By an Order dated 22nd July, 1985, the 2nd Appellant rejected the claim of the 1st Respondents for refund of the said sum of Rs. 54,40,642.71 holding that the operation of the said Judgment of the Madras High Court has been stayed in an appeal by the Excise Authorities there against before a Division Bench of the said High Court and that the said Notification dated 30th November, 1982 became effective on publication thereof in the Gazette on 30th November, 1982 itself irrespective of the fact that the same was made available to the public at a later date. This decision of the 2nd Appellant was impugned by the 1st Respondents in the Writ Petition filed by the 1st Respondents. 5. As per the pleadings on record, the following facts do not appear to be in dispute : (i) by the said Notification dated 1st March 1979 issued under Rule 8(1) of the said Rules, partial exemption was granted; (ii) by the said Notification dated 30th November, 1982, the exemption granted by the said no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st March, 1981. On 30th March, 1981, the Central Government in exercise of its powers under Section 25 (1) of the Customs Act had made and published two notifications rescinding the earlier notification dated 1st January, 1981 and imposing additional duty at the rate of 24 per cent ad valorem on Aluminium scraps. The said notification dated 30th March, 1981 was impugned and it was submitted on behalf of the Petitioners therein that the same became operative only when the Official Gazette in which it was published was made available to the public and not on the date of its publication. On the facts of that case and limited for the purpose of Section 25 of the Customs Act, it was held by the Calcutta High Court that publication of the said notification dated 30th March, 1981 in the Official Gazette should be deemed to be sufficient to make it operative and its availability to the public cannot be made a condition precedent for the same. 8. Mr. Mehta has also relied upon the case of State of Maharashtra v. Mayer Hans George reported in AIR 1965 Supreme Court 722. The facts in that case were that the Government of India in exercise of its power under Section 8 of the Foreign Exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic at least by 25th November, 1962 (emphasis supplied) and hence the plea by the Respondent George that he was ignorant of the law cannot afford him any defence in his prosecution. In the instant case, it is not in dispute that the Official Gazette in which the said Notification dated 30th November 1982 was published, was made available to the public only on 8th December, 1982 and as such, it was brought to the notice of the public on 8th December, 1982. 9. Mr. Chagla, the learned Counsel appearing for the 1st Respondents in appeal has submitted that the said Notification dated 30th November, 1982 came into effect when it was made known and not from the date thereof. Since the said Notification was made known and available to the public in general on 8th December, 1982, when the Official Gazette in which the same was published, was made available to the public in general, the Appellants were entitled to collect full duty at Tariff rates with effect from 8th December 1982 and not from 30th November 1982. 10. In support of his aforesaid submissions, Mr. Chagla has relied upon the case of Harla v. The State of Rajasthan reported in AIR 1951 SC 467. In that case, the appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained from giving effect to the notification between 1st - December, 1966 and 11th December, 1966 (both days inclusive) as the Gazette was printed and released to the public only on 12th December, 1966. As aforesaid, in the instant case, the Official Gazette was released to the public only on 8th December, 1982. 12. Mr. Chagla has next relied upon the case of B.K. Srinivasan and others v. State of Karnataka and others reported in (1987) 1 Supreme Court Cases 658. In that case, the Supreme Court was concerned with the interpretation of some of the provisions of Mysore Town and Country Planning Act which was enacted in 1961. On the question of requirement and/or necessity of publication of delegated or subordinate legislation, in para 15 of the said judgment, the Supreme Court has held as under : "There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the 'conscientious good man' seeking to abide by the law or from the standpoint of Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature and a subordinate legislation was earlier noted in Harla v. State of Rajasthan (supra). The Acts of the legislature are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done, and this is done only after debates take place which are open to the public. The matter receives wide publicity through the media. But the case is different with the delegated legislation and, if we may add, also in the case of orders passed by the authorities like that in the present Appeal before us. The mode of publication can vary but there must be reasonable publication of some sort." 14. In the instant case, the said Notification dated 30th November, 1982 was issued in exercise of the powers conferred by sub-rule (1) of Rule 8 of the said Rules read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957. To be effective, such Notification was required to be made available and made known to the public in general. The publication of the said Notification dated 30th November, 1982 in the Official Gazette containing the notification became available to the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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