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CASE NO.: Appeal (civil) 6071  of  1999

PETITIONER: UNION OF INDIA & OTHERS

       Vs.

RESPONDENT: M/S GANESH DAS BHOJRAJ

DATE OF JUDGMENT:       22/02/2000

BENCH: B.N. Kirpal & M.B. Shah.

JUDGMENT:

Shah, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Two  Judges  Bench  of this Court by  order  dated  15th October,  1999 has referred this matter to a larger Bench by@@                    JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ observing thus:-@@ JJJJJJJJJJJJJJJJ

   It appears that there is a conflict in the ratio of the decisions  of  this  Court in M/s Pankaj Jain  Agencies  vs. Union  of India and others {1994 (5) SCC 198}, Collector  of Central  Excise  vs.  New Tobacco Co.  and others {1998  (8) SCC  250}  and  I.T.C.  Limited vs.   Collector  of  Central Excise,  Bombay {1996 (5) SCC 538} is also relevant.  In our view  it is appropriate that this appeal is to be heard by a larger Bench.

   Before referring to the said decisions, we would narrate few facts involved in the matter.@@           JJJJJJJJJJJJJJJJJJJJJJJ

   Respondent  admittedly  imported a consignment of  Green Beans (Pulses) weighing 505-505 M.T.  vide Invoice No.14/099 dated  31.12.1986.   They have filed bill of entry  for  the same  on  05.2.1987.  The importer claimed clearance of  the said   goods  free  of  duty  on  the  basis  of   Exemption Notification No.129/76-Cus dated 02.8.1976.  However, it was pointed  out  that  on 04.2.1987 the said  notification  was amended vide Notification No.40/87-Cus, whereby basic duty @ 25%  was  levied.   As the duty was levied @  25%,  importer filed  Writ  Petition No.  535 of 1987 in the High Court  of Bombay  contending inter alia that the said notification was not duly published and that it was not in force on the date. A  Division Bench of the High Court of Bombay accepting  the said  contention on the basis of Full Bench decision of  the said Court in the case of Apar (P) Ltd.  Vs.  Union of India and  others, {1985 (22) ELT 644} allowed the writ  petition. Hence the present appeal by the State.

   At  the outset, we may state that in appeal filed before

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this  Court the judgment of the Full Bench of the High Court of Bombay in Apar (P) Ltd.s case (supra) was set aside {Re: Union of India v.  Apar (P) Ltd., (1999) 6 SCC 117}.

   A  copy of Original Extraordinary Gazette of India dated February  04,  1987 [Part-IISection 3Sub-section  (i)]  is produced  for  our perusal.  The said notification reads  as under:  -

   MINISTRY OF FINANCE

   (Department of Revenue) New Delhi, the 4th February, 1987 NOTIFICATION

   No.40/87-CUSTOMS  G.S.R.   81(E).In   exercise  of  the powers  conferred  by sub-section (1) of section 25  of  the Customs  Act,  1962  (52 of 1962), the  Central  Government, being  satisfied that it is necessary in the public interest so  to  do,  hereby  makes the following  amendment  in  the notification of the Government of India in the Department of Revenue  and  Banking  No.129/76-  Customs,  dated  the  2nd August, 1976, namely:-

   In  the said notification, for the words from the whole of  the duty of customs leviable thereon which is  specified in  the  said First Schedule the words from payment of  so much  of  that  portion  of the duty of  customs,  which  is specified  in  the  said First Schedule as is in  excess  of twenty five per cent ad valorem shall be substituted.

   The  contention is  the aforesaid Notification was  not made  available  to public at large and, therefore,  on  the basis  of  the  said  Notification customs  duty  cannot  be levied.   The learned counsel for the appellant relied  upon the  decision in M/s Pankaj Jain Agencies v.  Union of India and    others1   and   the     learned   counsel   for   the respondentimporter   has  relied  upon   the  decision   in Collector of Central Excise v.  New Tobacco Co.  and others2 in support of their respective contentions.

   In  Pankaj Jain Agencies (Supra), this Court  considered similar contention with regard to the Exemption Notification issued  under  Section 25 of the Customs Act, 1962 and  held that  there  was  no  substance   in  the  contention   that notwithstanding  the publication of the notification in  the Official  Gazette there was yet a failure to make law  known and  that,  therefore, the notification did not acquire  the elements  of  operativeness  and enforceability.   For  this purpose, Court referred to Section 25(1) of the Customs Act, which reads as under:  -

   25.   Power  to grant exemption from duty.(1)  If  the Central  Government is satisfied that it is necessary in the public  interest  so to do, it may, by notification  in  the Official  Gazette,  exempt  generally either  absolutely  or subject  to such conditions (to be fulfilled before or after clearance)  as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon.

   On  the  basis  of  the  aforesaid  Section,  the  Court negatived  the  contention that until the  notification  was available  in  Bombay  and shown to be so available    the

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statutory  rules  or instrument would not become  operative. The  Court relied on Three Judge Bench decision in State  of Maharashtra  v.  Mayer Hans George3 and also referred to the decision  in  B.K.   Srinivasan  and  others  v.   State  of Karnataka and others4 and held thus:  - In the present case indisputably  the mode of publication prescribed by  Section 25(1)  was complied with.  The notification was published in the  Official Gazette on the 13.2.1986.  As to the effect of the  publication  in the Official Gazette, this  Court  held [Srinivasan  case AIR at p.  1067:  SCC pp.672-73, para 15]:

   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.

                           (emphasis supplied)

   As  against  this,  learned counsel for  the  respondent referred  to the decision in Collector of Central Excise  v. New  Tobacco  Co.   and others5 and emphasized that  in  the aforesaid  case,  the  Court has specifically held  that  if publication is through a Gazette then mere printing of it in the  Gazette  would  not  be   enough  unless  the   Gazette containing the notification is made available to the public. The  Court  after  considering the contentions has  held  as under:  -

   Our  attention was also drawn to the decisions of  this Court in Pankaj Jain Agencies v.  Union of India6 and I.T.C. Ltd.   v.   CCE7  but they are not helpful in  deciding  the question that arises in these cases.

   We  hold that a Central Excise notification can be  said to  have  been  published,  except   when  it  is   provided otherwise,  when it is so issued as to make it known to  the public.  It would be a proper publication if it is published in  such  a  manner  that  persons   can,  if  they  are  so interested,  acquaint  themselves  with  its  contents.   If publication is through a Gazette then mere printing of it in the  Gazette  would  not  be  enough.   Unless  the  Gazette containing the notification is made available to the public, the   notification  cannot  be  said   to  have  been   duly published.

   In  Garware  Nylons  Ltd.  v.  Collector  of  Customs  & Central  Excise,  Pune8 similar question was  considered  by this  Court.   In that case by Notification dated  30.9.1985 the customs basic duty was enhanced from 100% to 150% w.e.f. 30.9.1985.   The question was whether enhanced rate of  duty was  applicable in respect of goods which were cleared  from the  warehouse during the period 30.9.1985 till  31.10.1985. The  case of the Company was that the notification came into effect  only  from 1.11.1985 since it was made available  to the public for sale on that date.  Relying upon the decision in  New  Tobacco Co., the Court allowed the said  appeal  by holding  that the notification can be said to have been duly published when it is made known to the public.

   It  has  been submitted by the learned counsel  for  the

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appellant  that the afore-quoted observations in the case of New  Tobacco Co.  are directly in conflict with the law laid down  by  this Court in Pankaj Jain Agencies and  in  I.T.C. Ltd.  (supra).  We agree with the said submission.

   In  our  view, as noted above, in Pankaj Jain  Agencies case, the Court directly dealt with a similar contention and after  relying  upon the decision in the case of Mayer  Hans George (Supra) rejected the same.  That decision is followed in  I.T.C.   Ltd.  (Supra) and other matters.  Hence, it  is difficult  to  agree  that  the   decision  in  Pankaj  Jain Agencies  case  was  not helpful in deciding  the  question dealt  with  by  the Court.  Section 25 of the  Customs  Act empowers  the Central Government to exempt either absolutely or subject to such conditions, from the whole or any part of the  duty  of customs leviable thereon by a notification  in Official  Gazette.  The said notification can be modified or cancelled.   The  method  and  mode provided  for  grant  of exemption   or  withdrawal  of   exemption  is  issuance  of notification   in  the  Official   Gazette.   For   bringing Notification  into  operation, the only requirement  of  the section  is  its publication in the Official Gazette and  no further publication is contemplated.  Additional requirement is  that under Section 159 such notification is required  to be  laid  before  each House of Parliament for a  period  of thirty days as prescribed therein.  Hence, in our view Mayer Hans  George  (supra) which is followed in the  Pankaj  Jain Agencies  case represents the correct exposition of law and the  Notification under Section 25 of the Customs Act  would come  into  operation  as  soon as it is  published  in  the Gazette  of  India  i.e.   the date of  publication  of  the Gazette.   Apart  from prescribed requirement under  Section 25,  usual mode of bringing into operation such notification followed  since years in this country is its publication  in the  Official Gazette and there is no reason to depart  from the same by laying down additional requirement.

   In  the case of Mayer Hans George, it was contended that the  Notification  under Section 8 of the  Foreign  Exchange Regulation  Act, 1947 of the Reserve Bank of India could not be  deemed  to have been in force and operation merely  from the  date of issue or publication in Gazette.  It would have effect  only from the date on which the person against  whom it  is sought to be enforced had knowledge of its making.  A contention  was raised as regards the precise point of  time when  a  piece  of   delegated  legislation  like  exemption notification  by the Reserve Bank would in law take  effect. In  support  of that contention reliance was placed  on  the decision  of  Privy Council in Lim Chin Aik v.  The  Queen9. The  Court negatived the said contention by holding that  in the  first  place  the order of Minister dealt with  by  the Privy  Council was never published since admittedly it was transmitted  to  the Immigration official who kept  it  with himself.   The Court observed:  - But in the case on hand, the  notification  by the Reserve Bank varying the scope  of the  exemption,  was admittedly published in the  Official Gazettethe  usual mode of publication in India, and it  was so  published  long before the respondent landed in  Bombay. The  question, therefore, is not whether it was published or not,  for  in  truth  it was published, but  whether  it  is necessary that the publication should be proved to have been brought  to the knowledge of the accused Lastly, the  order made  by  the Minister in the Singapore case, was  one  with respect to a single individual, not a general order, whereas what we have before us is a general rule applicable to every

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person  who  passes  through India.  In the first  case,  it would  be  reasonable  to expect that the proper  method  of acquainting  a person with an order which he is directed  to obey  is to serve it on him, or so publish it that he  would certainly  know  of  it, but there would be no  question  of individual service of a general notification on every member of  the public, and all that the subordinate law-making body can or need do, would be to publish it in such a manner that persons  can,  if they are interested,  acquaint  themselves with its contents.

   The  Court further referred to the judgment of Bailhache J.   in Johnson V.  Sargant & Sons10 and did not approve the observation  made  therein to the effect that the order  was not  known  until  the morning of May 17 but  it  came  into operation  before it was made known.  On the contrary, Court held  that there was great force in learned authors  (Prof. C.K.   Allen)  following comment on reasoning  in  Sargants case:

   This  was a bold example of judge-made law.  There  was no  precedent  for  it,  and indeed  a  decision,  Jones  v. Robson11, which, though not on all fours, militated strongly against  the judges conclusion, was not cited;  nor did the judge  attempt to define how and when delegated  legislation became known.  Both arguments and judgment are very brief. The  decision has always been regarded as very doubtful, but it never came under review by a higher court.

   The Court also held that:

   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  India,  not outside  India  so as to bring it to the notice of  everyone who  intends to pass through India.  It was published  and made  known  in India by publication in the Gazette  on  the 24th  November and the ignorance of it by the respondent who is a foreigner is, in our opinion, wholly irrelevant.

   The Court further observed:  -

     but  where  there  is no  statutory  requirement  we conceive  the rule to be that it is necessary that it should be  published in the usual form i.e., by publication  within the  country in such media as generally adopted to notify to all  the persons concerned in the making of rules.  In  most of  the  Indian  statutes,  including   the  Act  now  under consideration,  there is provision for the rules made  being published  in the Official Gazette.  It therefore stands  to reason  that  publication in the Official Gazette viz.,  the Gazette  of India is the ordinary method of bringing a  rule or  subordinate  legislation  to the notice of  the  persons concerned.

   From  the aforesaid judgment it can be stated that it is established  practice  that the publication in the  official gazette,  that  is, Gazette of India is ordinary  method  of bringing  a rule or subordinate legislation to the notice of the  persons  concerned.   Individual service of  a  general

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notification  on every member of the public is not  required and  the  interested  person can acquaint himself  with  the contents  of the notification published in the gazette.   It is the usual mode followed since years and there is no other mode  prescribed  under  the present statute except  by  the amendment in the year1998 by Bill No.  21 of 1998.

   Further,  in  New Tobacco Co.s case (Supra)  the  Court referred  to the decision in Harla v.  State of Rajasthan12. In  Harlas  case the Court referred to Section 3 of  Jaipur Laws  Act, 1923 which inter alia provided that the Court  of Jaipur  State  shall administer the law passed from time  to time by the State and published in the official gazette.  In that  case, it was admitted that Jaipur Opium Act was  never published in the Gazette and, therefore, the Court held that in  the  absence  of  some specific law  or  custom  to  the contrary, a mere resolution of a Council of Ministers in the Jaipur  State  without further publication  or  promulgation would  not be sufficient to make a law operative.  The Court also observed:  -

   We  take  it  that  if  these  Proclamations  are  not published strictly in accordance with the rules so drawn up, they  will  not be valid law..The mode of  publication  can vary;   what  is  a  good  method in  one  country  may  not necessarily   be  the  best  in  another.   But   reasonable publication of some sort there must be.

   Further,  in  the case of New Tobacco Co.  (Supra),  the Court  relied  on the decision in B.K.  Srinivasan  (Supra). In  that  case  (in  para   15)  after  considering  various contentions,  the  Court  specifically held that  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.

   From  the aforesaid observations, it is plain and  clear that   the  decision  in   B.K.   Srinivasan  (Supra)   also reiterates  that the notification will take effect only when it  is published through the customarily recognised official channel,  namely, the official gazette.  We also agree  with the  reasons recorded in Mayer Hans George (supra) and  hold that  notification under Section 25 of the Customs Act would come  into  operation  as  soon as it is  published  in  the Official  Gazette  and no further publication  is  required. Hence, the decision rendered in Pankaj Jain Agencies (supra) represents  the  correct exposition of law on  the  subject. The  decision  rendered  in  New Tobacco  Co.   followed  in Garware  Nylons Ltd.  (supra) does not lay down the  correct law.

   The  learned  counsel  for   the  respondent,   however, submitted  that there is nothing on record to establish that notification  dated 4.2.1987 withdrawing full exemption from the levy of customs duty was published on the same day.  For this  purpose,  original  copy  of  the  Notification  dated 4.2.1987 published in the Extra-ordinary Gazette on the said date had been produced before us.  The Gazette is admissible being  official  record  evidencing public affairs  and  the Court  is required to presume its contents as genuine  under Sections 35 and 38 read with Section 81 of the Evidence Act, unless  contrary is proved.  Hence, there is no substance in the  contention  that  notification dated 4.2.1987  was  not

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published in the Gazette on the same day.  In our view, said notification came into force on the same date.

   Lastly,  at this stage, we would mention that Parliament has  added  sub- sections (4) and (5) to Section 25  of  the Customs  Act  by  Act No.21 of 1998 w.e.f.   1.6.1998  which prescribe  the  method  and  mode   of  publication  of  the Notification  and  the  date on which it comes  into  force. Newly  inserted sub- sections (4) and (5) to Section 25  are as under:  -

   (4)  Every  notification issued under  sub-section  (1) shall,--

   (a)  unless  otherwise provided, come into force on  the date  of its issue by the Central Government for publication in the Official Gazette;

   (b)  also be published and offered for sale on the  date of  its  issue  by the Directorate of Publicity  and  Public Relations of the Board, New Delhi.

   (5)  Notwithstanding  anything contained in  sub-section (4),  where a notification comes into force on a date  later than  the date of its issue, the same shall be published and offered  for  sale by the said Directorate of Publicity  and Public  Relations  on a date on or before the date on  which the said notification comes into force.

   In  the  result,  the appeal is allowed.   The  impugned judgment and order passed by the High Court is set-aside and quashed.   The respondent is held liable to pay customs duty @  25%  under  Notification No.40/87-Cus.   dated  4.2.1987. There shall be no order as to costs.