TMI Blog1998 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... l be determined by the Assistant Collector of Central Excise in accordance with Section 11B of the Central Excise Act. - Civil Appeal No. 4569 of 1989, 4513, 4514 of 1992, 1729, 3111, 4913-4915, 5423 of 1993, 1658-1661 of 1994, 10001, 7534, 7535 of 1995, 7684, 7685, 7719, 7720, 7721 of 1996, 49 of 1998 - - - Dated:- 9-1-1998 - S.C. Agrawal and G.T. Nanavati, JJ. R. Mohan, J. Vellapalli, H.N. Salve, Senior Advocate, R.N. Verma, V.K. Verma, D.N. Mehta, R.C. MIshra, Ms. Meera Agarwal, K.J. John, J.D. Jain, Kanwaljit Kochar, S.K. Jain Ravinder Narain, Ashok Sagar, Ms.Punita Singh, Mrs. Sonu Bhatnagar, Mr Rahena Nath, Mukul Mudgal, Vikram S. Nankani, Ms Bina Gupta, Ms. Rakhi Ray, Ms. T. Sudha, Ms. Manjula Gupta, Ms. Lata Krishnamurti, D.S. Mahra, Ms. Janki Ramachandran, K.K. Mani, C.V. Subha Rao, Advocates with them, for the appearing parties. [Judgment per : G.T. Nanavati, J.]. - In this batch of cases, the question that arises for consideration is whether a Central Excise notification comes into force with effect from the date on which it is printed in the Government Gazette or from the date it is made available to public. 2.To illustrate the circumstances in which this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the availability of the printed material to the general public that constitutes the required publication. Taking this view, it further held that the excess recoveries of duty made during the period from 30th November, 1982 to 3rd December, 1982 cannot be retained by the Authorities as the Company was not liable to pay duty at the rate fixed by the Notification dated 30th November, 1982 for the said period. The Collector of Central Excise has, therefore, filed this appeal under Section 35L(b) of the Act. 3.It was contended by the learned Counsel for the appellants that the only requirement of Section 38 of the Act is that all the rules made and notifications issued under the Act shall be published in the official Gazette. Thus publication in the official Gazette is the only statutory requirement. The Notification is dated 30th November, 1982 and the Gazette in which it was printed also bears the same date, i.e., 30th November, 1982 and, therefore, that date should be regarded as the date of its publication. On the other hand, it was contended by the learned Counsel for the respondents that publication cannot be equated with mere printing and it is the availability of the printed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the resolution without promulgation or publication in the Gazette or other means as known to the public was sufficient to make it law. This Court referred to the rule prevailing in this behalf in England that acts of Parliament become law from the first moment of the day on which they received the Royal assent, but the Royal proclamations only when actually published in the official Gazette and cited with approval the decision in Johnson v. Sargent [1918 (1) KB 101], wherein it was held that the order of the Food Controller did not become operative until it was made known to the public. This Court also noticed that "nor is the principle peculiar to England. It was applied to France by the Code Napolean, the first Article of which states that the laws are executory "by virtue of the promulgation thereof" and that they shall come into effect "from the moment at which their promulgation can have been known". It also pointed out that such a rule has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India Rules. It then made an important observation that this rule was only an application of a deeper rule which is founded on natural justice. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s published in the Gazette only on November 24, 1962 whereas he left Zurich on 27th, he could not have had knowledge about the restrictions imposed by that notification. This Court rejecting the contention held that the notification was published and made known in India by publication in the Gazette and the ignorance of it by the accused who was a foreigner was wholly irrelevant and made no difference to his liability. Relying upon the decision it was contended by the learned Counsel for the respondent that it is the cardinal principle of the criminal jurisprudence that a person should not be convicted for an offence unless the person or persons affected by the prohibition are in a position to observe the law or to promote the observance of the law. The said observation was made by this Court in the context of mens rea being a necessary ingredient of the offence. In that very case this Court has observed that individual service of a general notification on every member of the public is not necessary and all that the subordinate law-making authority can or need do, would be to publish it in such manner that persons can, if they are interested, acquaint themselves with the contents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public ...... Neither the date of the notification nor the date of printing, nor the date of Gazette counts for `notification' within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing of the Official Gazette and stacking them without releasing to the public would not amount to notification at all..... 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 publish 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 the legal implications flowing from want of due notification, as exemplified above. Printing the notification in the Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise to whom these cases have been remitted for considering the question of refund in the light of Section 11B of the Central Excise Act shall decide when the concerned notifications became effective in accordance with the view that we have taken and after giving an opportunity to the respondents to lead evidence in that behalf. 16.Civil Appeal No. 1729 of 1993 is partly allowed. We set aside the order passed by the High Court directing the appellants to refund Rs. 35,57,094.74 and remit the matter on this point to the Assistant Collector of Central Excise to decide the entitlement of the respondent for refund in the light of Section 11B of the Central Excise Act. 17.Civil Appeal No. 3111 of 1993 is dismissed. 18.Civil Appeal Nos. 7684 and 7685 of 1996 and Civil Appeal Nos. 4913-15 of 1993 are allowed. The impugned judgments and orders passed by the High Court are set aside and these matters are remitted to the Assistant Collector of Central Excise for deciding when the concerned notification became effective in accordance with what we have held above and after giving an opportunity to the appellant company to produce evidence in that behalf and also to decide thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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