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PETITIONER: COLLECTORS OF CENTRAL EXCISE

       Vs.

RESPONDENT: NEW TOBACCO CO. ETC. ETC.

DATE OF JUDGMENT:       09/01/1998

BENCH: S.C.AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                             WITH    C.A.Nos.4513-14/92,165861/94,1729/93,3111/93,7684/96.  7685/96,7719-21/96, 4913-15/93,10001/95,5423/93 AND 7535/95                             AND                 CIVIL APPEAL NO. 49 OF 1988    -----------------------------------------------------             (Arising our of SLP @ No. 19566/94)                       J U D G M E N 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.      To illustrate  the circumstances in which this question arises, we  will state the facts of Civil Appeal No. 4569 of 1989. The company involved in this appeal is the New Tobacco Company Limited.  It was  earlier known  as  Duncan  Tobacco Company. It  is engaged  in manufacturing  cigarettes. Since 1979, it  used to  pay duty on cigarettes manufactured by it at the  rate fixed by Central excise  Notification No. 30/79 dated 1st  March. 1979, as amended from time to time. It was rescinded  with   effect  from   30th  November,   1982   by Notification No.  284/82-C dated  30th November, 1982, which prescribed new  rates of excise duty. Between 30th November, 1982 and  8th December,  1982, the  Company  cleared  79,456 million cigarettes  and paid  duty thereon at the rate fixed by the  Notification dated  1st March,  1979, as  it did not know that  a new  notification was  issued on 30th November, 1982. As  the Company had paid duty at a lesser rate, a Show Cause Notice  dated 22nd  December, 1982, was issued calling upon the  Company to  show cause  why it  should not pay the differential amount between the duty short paid and the duty which had  become payable  in term  of the  new notification dated 30th  November, 1982.  The Assistant  Collector by his Order Dated 11th April, 1983, confirmed the said demand. The order of the Assistant Collector was upheld by the Collector of Central  Excise (Appeals)  on 4th  October, 1985. It then appealed to the Customs, Excise and Gold (Control) Appellate Tribunal. Only content in pressed by the Company therein was

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that the  Notification dated  30th November,  1982 was  made available  to   the  public   on  8th  December,  1982  and, therefore, duty  at the  notification 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 material to the general public that  constitutes  publication  as  required  by  the statute and the rules of natural justice.      Section 38  of the Act provides that all the rules made and notifications issued under the Act shall be published in the official  Gazette. So,  the requirement of Section 38 is publication of  the  rules  and  the  notifications  in  the official Gazette. The dictionary meaning of the word   publi c’  as   given  in   Webster’s   Comprehensive   Dictionary. International Edition,  is "(1)  To make  known or  announce publicly; promulgate;  proclaim, (2)  To print  and issue to the public  (3) To communicate to a third person." According to  the   Legal  Glossary,   published  by  the  Legislative Department, Ministry  of Law,  Justice and  Company Affairs, Government of  India in  1992, it  means "to  make generally accessible or available; to place before or offer to public; to bring  before the  public for sale or distribution". Thus the word  publish’ connotes  not only an act of printing but also further  enhanced rate  could be lawfully demanded from it  only   from  8th  December,  1982.  In  support  of  its contention the  company had  produced  a  letter  dated  2nd August, 1983  obtained by  its sister  concern M/s. National Tobacco  Company   from  the   Controller  of  Publications, Department of  Publication, Ministry  of Finance, Government of India,  which stated  that  Notification No. 284/82 dated 30th November, 1982 was placed for sale to the public on 8th December, 1982.  The Tribunal  relying upon  the said letter and  the  decision  of  the  Bombay  High  Court  in  G.T.C. Industries Limited  V/s. Union  of India  [1988 (33) ELT 83] held that  publication as  contemplated by Section 38 of the Central Excise  and Salt Act, 1944 and Rule 8 of the Central Excise Rules, cannot be equated with mere printing and it is 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 35-L (b) of the Act.      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  action of  issuing or making it  available to  the public. Notification, according to Webster’s  Third New International Dictionary, inter alia means "1:  the act or an instance or notifying : Intimation, Notice;  est:   the  act   of  given   official  notice   or information; 2:  a written  or  printed  matter  that  gives notice". The  Legal Glossary,  referred to above, defines it as "a  written or printed matter that gives notice". Even if we  go   by  the   dictionary  meaning  the  requirement  of publishing the  notifications would  connote  that  what  is intended to  give notice or information to the public can be

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treated as  published only  when it is made available to the public so  that they  can know  about it. The requirement of publishing the  notifications in the official Gazette, which is an  official journal  or a  newspaper  containing  public notices and  other prescribed  matters, also  indicated that the word  publish’ in Section 38 should be so interpreted.      We will  refer to  the decisions to which our attention was drawn  by the learned counsel, In Harla vs. The State of Rajasthan {1952  SCR 110}  the facts were that  a Council of Ministers,  appointed  to  look  after  the  Government  and Administration  of   Jaipur  State   during  the  Maharaja’s minority, passed  a resolution  which purported to enact the Jaipur Opium  Act and  the question  which  had  arisen  for consideration of  this Court was whether the mere passing of he 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 if 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  [1981  (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.  It has  further observed 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 required  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  all 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  a Resolution without  anything more  is abhorrent to civilized 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 publication of  some reasonable  sort is  essential." Taking this view  this Court  held that a resolution of the Council of Ministers in the Jaipur State without publication was not sufficient to make the law operative.      In  State   of  Maharashtra   vs.  Mayer   Hans  George [1965(1)SCR 123],  what  had  happened  was  that  a  German smuggler left  Zurich for  Manila by  a Swiss  plane on 27th November, 1962 with 34 kilos of gold. He had not declared it in the  manifest for  transit. The plane arrived a Bombay on 28th. The  Passenger had  remained in the plane. The customs

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authorities, on search, recovered the gold carried by him on his person.  He was prosecuted for importing gold into India in breach  of Sections  8(1)  and  23(1-A)  of  the  Foreign Exchange Regulation  Act  and  the  notification  dated  8th November, 1962  of the  Reserve Bank  of  India,  which  was published in  the Gazette  of Indian  on 24th  November. The respondent was  convicted by the Magistrate but acquitted by the High  Court. One  of the  contentions raised  by him was that a  notification being  merely subordinate and delegated legislation could  be deemed  to be  in force  only when  it brought to the notice of the persons affected by it and that as the  same was  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 that 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 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  means rea  being a  necessary ingredient  of the offence. In  that very  case this  Court has  observed  that individual service  of a general notification on very 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 its contents.      In State  of Madhya  Pradesh  vs.  Ram  Ragubir  Prasad Agarwal [AIR  1979 SC  888],  while  interpreting  the  word ‘publish’ in  Section 3(2)  of M.P. Prathamik, Middle School Tatha   Madhyamik   Shiksha   (Pathya   Pustakon   Sambandhi Vyavastha) Adhiniyam, this Court observed that "in our view, the purpose  of S.  3 animates the meaning of the expression ‘publish’.‘Publication’  is  the  act  publishing  anything; offering it  to public notice, or rendering it accessible to public scrutiny.....  an advising  of the  public; a  making known  of  something  to  them  for  a  purpose.  Logomachic exercises need not detain us because the obvious legislative object is  to ensure  that when  the  Board  lays  down  the ‘syllabi’ it  must publish ‘the same’ so that when the stage of prescribing text-books according to such syllabi arrives, both the  publishers and  the State  Government and even the educationists  among   the  public  may  have  some  precise conception about  the relevant  syllabi to enable Government to decide  upon suitable  text-books from the private market or compiled under S.5 by the State Government itself. In our view, therefore,  "publication" to  the educational world is the connotation  of the expression. Even the student and the teaching community  may  have  to  know  what  the  relevant syllabus for  a subject is, which means wider publicity than minimal communication to the departmental officialdom."      Following this  judgment  Madras  High  Court  in  Asia "Tobacco Co,  Ltd Vs,  Union of  India [1984  (18) ELT  152] held that  in such  cases the  effective date is the date of knowledge and  not the  date of  the official  Gazette.  The relevant  observation  made  in  paragraph  4  of  the  said judgment are as under :-            "The  mere  printing  of  the      official  Gazette   containing  the      relevant notification  and  without

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    making  the   same  available   for      circulation and  putting it on sale      to the  public will  not amount  to      the   ‘notification’   within   the      meaning of  rule 8(1) of the Rules.      The intendment  of the notification      in the  Official Gazette is that in      the  case   of  either   grant   or      withdrawal of  exemption the public      must come  to  know  of  the  same.      ‘Notify’ even according to ordinary      dictionary  meaning  would  be  "to      take  note  of,  observe;  to  make      know,   publish,    proclaim;    to      announce; to  give  notice  to;  to      inform". It  would be  a mockery of      the rule  t o  state that  it would      suffice   the    purpose   of   the      notification if the notification 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, more  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  petitioner is  expected      to  be   aware  of  the  Withdrawal      Notification 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   Official   Gazette,   without      making it available for circulation      to the concerned public, or placing      it for  sale to  the  said  public,      would  certainly  not  satisfy  the      idea of  notification in  the legal      sense.".      The same view was taken by the Bombay High Court in GTC Industries Ltd,  Vs, Union of India [1987 (13) ECR 1161] any by Delhi  High Court  in Universal  Cans and  Containers vs. Union of India [19939640 ELT 23 (Delhi)].      The  following   observations  made   in  the  case  of

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B.K.Srinivasan and  others vs.  State of Karnataka [1987 (1) SCC 658] also support the view that we are taking:-      "Whether law  is  viewed  from  the      stand point  of the  ‘conscientious      good man’  seeking to  abide by the      law or  from  the  stand  point  of      Justice  Holmes’s  ‘unconscientious      had man’  seeking to avoid the law,      law must  be known, that is to say,      it  must  be  so  made  it  can  be      known."      Our attention  was also  drawn to the decisions of this Court in  Pankaj Jain  Agencies  vs.  Collector  of  Central Excise, Bombay  [1996 (5)  SCC 538] 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  containing   the notification is made available to the  public, the notification cannot be said to have been duly published.      As the  view taken  by the  Tribunal is  correct  Civil Appeal No.  4569 of  1989, field  by the  Collector  Central Excise, is  dismissed with  a direction  that entitlement of the respondent  company to the refund shall be determined by the Assistant Collector of Central Excise in accordance with Section 11-B of the Central Excise Act.      Civil Appeal Nos, 4513-4514 of 1992 are dismissed.      Civil Appeal  Nos, 1658-61  of 1994  and Civil  Appeals Nos. 7719-21  of  1996  are  partly  allowed.  The  impugned judgments and  orders passed by the High Court are set aside and the  Assistant Collector of Central Excise to whom these cases have  been remitted  for considering  the question  of refund in  the light  of Section  11-B 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.      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 11-B of the Central Excise Act.      Civil Appeal No. 3111 of 1993 is dismissed.      Civil Appeal  Nos. 7684  and 7685 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 thereafter the question of refund in accordance with Section 11-B of the Central Excise Act.      Civil Appeal  No. 5423  of 1993  is partly allowed. The impugned judgment  of the Tribunal is set aside and the case is now remitted to the Tribunal to decide when the concerned notification had become effective after enabling the parties to lead evidence in that behalf and also to decide the other contentions raised  by the respondent-company and which were

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left open, if that becomes necessary.      Civil Appeals  Nos. 7534-35 of 1995 is dismissed as the demand for  differential duty  was in  respect of  the goods cleared on 25.3.1985 only and admittedly the notification in question was  not made available on that date till the goods were cleared by the Company.      In S.L.P. @ No. 19566 of 1994 we grant leave and partly allow this appeal. The impugned judgment and order 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.      We pass no order as to costs in all these appeals.