Madras High Court
Asia Tobacco Company Ltd. vs Union Of India And Ors. on 1 January, 1800
JUDGMENT
1. The petitioner in these three writ petitions is one and the same. It is a Company incorporated under the Companies Act, 1956. The petitioner manufactures cigarettes in its factory at Hosur, Dharmaputi Distict. The petitioner claims that it manufactures cigarettes for itself and for M/s. I.T.C. Limited. Ciragettes are subject to levy of excise duty under Tariff Item 4(II) (2) of the Central Excise Tariff under manufactured tobacco. There was a partial exemption Notification 30/79 of Central Excise, dated 1-3-1979, hereinafter refferred to as the Exemption Notification and the said notification, with its amendments by Notification Nos. 140/79-C.E. dated 30-3-1979 and 25/81-C.E., dated 1-3-1981, issued under sub-rule (1) of rule 8 of the Central Excise Rules, 1944, hereinafter referred to as the Rules, read as follows :
"Partial Exempmtion to Cigarettes :
In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rule, 1944, read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) (hereinafter referred to as the Additional Duties of Excise Act) the Central Government hereby exempts cigarettes of the description specified in column (1) of the Table hereto annexed and falling under sub-item II(2) of Item No. 4 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) (hereinafter referred to as the Central Excise Act) from so much of the duty of excise leviable thereon bothe under the Central Excise Act and the Additional Duties of Excise Act, as is in excess of the duty specified in the corresponding entry in column (2) thereof.
TABLE
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Description Ruty of duty
---------------------------------------------------------------------------------
(1) (2)
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Cigarettes of which the value of one thousand
(i) does not exceed rupees ten One thousand and fifty per
cent ad valorem plus twenty-
one rupees and fifty paise per
one thousand.
(ii) exceeds rupees ten but does not One hundred and fifty per cent
exceed rupees thirty-five ad valarem plus ten per cent
ad valorem for every
additional rupee or part
thereof in excess of a value of
rupee or part thereof in excess of a
value of rupees 71 ten per one
thousand, plus 1 twenty-one rupees and
twenty- five paise per one thousand.
(iii) exceeds rupees thirty-five Four hundred per cent ad
valorem plus twenty one rupees
and twenty-five paise per one
thousand :
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Provided that the amount of duty so levied shall be apportioned in the ratio of 72.5 : 27.5 between the duty leviable under the Central Excise Act and the Additional Duties of Excise Act respectively.
(Notification No. 30/79-C.E., dated 1-3-1979 as amended by Natification No. 140/79-C.E., dated 30-3-1979 and No. 25/81-C.E., dated 1-3-1981)."
The petitioner claims, and there is no denial of the same by the respondents, that it was clearing cigarettes manufactured for itself and for M/s. I. T. C. Limited at the rates specified in the Exemption Notific depending on the assessable value. The Central Government, by Notification, 284/82-C.E., dated 10-11-1982, hereinafter referred to as the withdrawal Notification, rescinded he Exemption Notification pursuant to the powers under sub-rule (1) of rule 8 of the Rules. The Withdrawal Notification reads as follows :
" MINISTRY OF FINANCE (Department of Revenue) New Delhi, the 30th November, 1982 ..
NOTIFICATION No. 284/82-Central Excises. "G.S.R. 728(E).-In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944 read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) the Central Government hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 30/79- Central Excises, dated the 1st March, 1979.
(F.No. 349/2/82-TRU) J. K. BATRA, Under Secy."
On 6-12-1982, the third respondent addressed a letter to the petitioner as follows :
"OFFICE OF THE SUPERINTENDENT OF CENTRAL EXCISE HOSUR III RANGE,HOSUR O.C. No. 1554/82 Dated 6-12-1982 To M/s. Asia Tobacco Company Limited, Sipco Industrial Complex, Hosur.
Gentlemen, Subject : Central Excise Cigarettes--Issue of Notification No. 284/82- Central Excise, dated 30-11-1982--Differential Duty on the cigaretters cleared with effect from 30-11-1982-Demands issued- Regarding :
-----
"You are hereby informed that Notification No. 30/79, dated 1-3-1979 prescribing concessional rate of duty for Cigarettes has been rescinded by Notification No. 284/82-Central Excise, dated 30-11-1982 consequently the clearances of cigarettes effected from 30-11-1982 based on the assessable value claimed in your price list dated 12-11- 1982 on provisional basis would have been cleared on tariff rates of duty applicable on cigarettes on provisional basis pending issue of orders by the Assistant Collector on the above price list filed by you. So far with effect from 30-11-1982 to 5-12-1982 you have cleared 62064 thousand of Scissor brand cigarettes. So you are hereby requested to pay the differential duty as furnished below for the above quantity of cigarettes cleared by you on the above period.
B.E.D. A.E.D. S.E.D Total Rs. 5,81,850/- Rs. 3,64,526/- Rs. 58,185/- Rs. 10,04,661/-
"You are hereby requested to pay the differential duty as furnished below for the above differential duty immediately and produce the paid challan.
Yours faithfully, Sd.
Superintendent of Central Excise Hosur III Range, Hosur".
The petitioner, by its reply dated 10-12-1982, the contents of which run as follows, expressed surprise with regard to the withdrawal Notification an dpleaded that the withdrawal Notification has not been brought to its notice and it has not been handed over a copy of the same and, however, it is paying the demanded amount without prejudice to its rights and contentions in the matter :
"ASIA TOBACCO COMPANY LIMITED EX/280/427 10th December'82. The Superintendent of Central Excise, Hosu Range III, Hosur.
Dear Sir, "We are in receipt of your demand notice O.C. No. 1554/82 dated 6-12- 1982 on 7-12-1982. We are surprised to note that the Natification No. 284/82-Central Excise, dated 30-11-1982 have been brought to our notice on 7-12-1982 demanding with retrospective effect the differential duty on clearance from 30-11-1982. In fact we have not been handed over a copy of the Notification 284/82-Central Excise, dated 30-11-1982 to enable us to pay the duty as demanded by you.
"However, we are paying Rs. 10,04,661/- without perjudice to our rights and contentions in this matter. The paid challan is enclosed for your information.
Yours faithfully, For ASIA TOBACCO COMPANY LIMITED, Sd.
Factory Manager".
On 23-4-1983, M/s. I.T.C. Limited, for whom the petitioner manufactures cigarettes, addressed a letter to the Controller of Publications, Publication Department of Government of India, Delhi- 100054, requesting information and the actual date when the Gazette containing the Withdrawal Notification was made available to the public. That letter reads as follows :
"LEG/381 23rd April, 1983 Controller of Publicatio, Publication Department of Government of India, Old Secretarial, Civil Lines, Delhi-100 054.
Dear Sir, "Gazette of India"
"As far as we are aware the Gazette copy of the Notification No. 284/82-Central Excise, dated 30th Novermber, 1982 rescinding the Natification of the Government of India in the Ministry of Finance (Department of Revenue) No. 30/79-Central Excise, date 1st March, 1979 was not made available to the public until some time in the first week of Decembner, 1982.
"We shall be most grateful if you would kindly let us know the exact date on which the Gazette of India containing the above notification was actually printed and the date on which the same was made available to the public. Please treat the matter as most urgent.
Yours faithfully, I.T.C. Limited, Sd.
Accountant (ITD)."
On 23-4-1983, a reply was received from the Assistant Controller (Periodicals) for Controller of Publications, and the said reply runs as follows :
"GOVERNMENT OF INDIA Department of Publication.
Civil Lines, Delhi-110054 No. Gaz/81 179/83 23-4-1983 To Accountant I.T.C. Limited Virginia House 37, Chowringhee Calcutta.
Dear Sir, "With reference to your letter No. LEG/381 dated 23-4-1983 regardings the date of availability for the public of the Gazette of India Exty. Pt. II Section III sub-section 1 dated 30-11-1983 No. G.S.R. Notification 284/82-Central Excise. In this connection I write to inform you that the said Gazette of India was placed on sale for public on 8-12-1985.
Yours faithfully, Sd.
Assistant Controller (Periodicals) for Controller of Publications."
On 9-5-1983, the petitioner wrote to the second respondent pointing out that the Writhdrawal Notification was placed on sale for public only on 8-12-1982 and therefore, the effect the Withdrawal Notification would be only from 8-12-1982 and wanted that while working the differential duty for the period from 30-11-1982 to 7-12- 1982, the same should be calculated taking into consideration the date applicable as per the Exemption Notification. The said letter stands extracted as follows :
"ASIA TOBACCO CO. LIMITED EX/280/1323 KSM May 09, 1983 The Assistant Collector of Central Excise, Hosur I.D.O., Bagalur Road, Hosur-635 109.
Dear Sir, Subject :- Notification No. 284/82 issued by Government of India,
----------
"The Notification 30/79 dated 1-3-79 was rescined by Natification No.284/82 dated 30-11-1982. We are advised that this notification will come into9 effect only from the date it is printed in teh Official Gazette made available to the public. We are enclosing herewith a true copy of letter received from Assistant Controller (Periodicals) for Controller of Publications, Government of India, Department of Publications, New Delhi, dated 23-4-1983 stating that the above notification was placed on sale for public on 8-12-1982. Therefore, the effect of the notification 284/82 could be made applicable only form this date. In this connection we also place our reliance on the following judgments (1) (1976) 37 S.T.C. 314 wherein it has been held that since it is a matter of daily practice that notifications are published in the Gazette of India bearing back dates, the notification will not take effect from the date printed in the Gazette but will take effect from the date when the Gazette was actually published and issued for sale to the public.
"We also rely on similar cases and (1975) 35 S.T.C. 319 on similar matters.
"Hence we request you that in view of what has been stated above that, while working the different duty payable for the period 30-11-1982 to 7-12-1982 the same should be calulated taking in to consideration the date applicable as per the earlier Notification viz. 30/79 of 1-3- 1979.
"Thanking you, Yours faithfully, For ASIA TOBACCO CO. LIMITED Sd.
K. S. Murthy, Factory Manager."
The second respondent replied on 19-9-1983 in the following terms :
"Office of the Assistant Collector of Central Excise, Hosur Division, Hosur-635 109 C. No. V/4/30/103/82-T3 19-9-1983 From The Assistant Collector of Central Excise, Hosur Division, Hosur.
To M/s. Asia Tobacco Co. Limited, No. 35, Rajaji Nagar, Hosur-635 126.
Gentlemen, Subject : C.E.-Cigarettes-Issue of Notification No. 284/82 dated 30- 11-1982 rescinding Notification No. 30/79 dated 1-3-1979- Effect of the Notification. Your represedntation regarding.
Reference : Your letter No. EX/280/1323/FSM dated 9-5-1983.
---------
"Your representation regarding the implementation of the Tariff rate of duty on Cigarettes as per the Notification No. 284/82-C.E., dated 30-11-1982 will take effect only from 8-12-1982 i.e., the date on which the Notification was made available to the public cannot be entertained since in the Government Gazette also the date of the Notification No. 284/82 has been mentioned as 30-11-1982.
"Hence the Notification No. 284/82 will take effect from 30-11-1982 itself.
"You are therefore informed that while calculating the differential duty for the period from 30-11-1982 to 7-12-1982, it should be worked out on the basis of the rate of duty prescribed in the Notification No. 284/82-C.E. dated, 30-11-1982.
Yours faithfully, Sd.
(B.V.Bhatt) Assistant Collector."
The petitioner would persist that the Withdrawal Notification could be effective only from 8-12-1982 and it wrote back on 15-11-1983 to the second respondent as follows :
"ASIA TOBACCO COMPANY LIMITED EX/450/306 November 15, 1983 The Assistant Collector of Central Excise, Hosur I.D.O., Bagalur Road, Hosur-635-109 Dear Sir, "We refer to the correrpondence on the subject resting with your letter C. No. V/4/30/103/82 T-3 dated 19-9-1983 and send you photo copies of the cases reported in (1976 1 "ASHIA TOBACCO CO. LIMITED EX/280/1323/KSM May 09, 1983 The Assistant Collector of Centreal Excise, Hosur I.D.O., Bagalur Road, Hosur-635 109.
Dear Sir, Subject : Notification No. 284/82 issued by Government of India,
---------
"The notification 30/79 dated 1-3-79 was rescinded by Notification No. 284/82 dated 30-11-1982. We are advised that this notification will come into effectg only from the date it is printed in the Official Gazette made available to the public. We are enclosing herewith a true copy of letter received from Assistant Controller (Periodicals) for Controller of Publications, Government of India, Department of Publications, New Delhi, dated 23-4-1983 stating that the above notification was placed on sale for public on 8-12-1982. Therefore, the effect of the notification 284/82 could be made applicable onlyu from this date. In this connection we also place our reliance on the following judgments :
(1) (1976) 37 S.T.C. 314 wherein it has been held that since it is a matter of daily practice that notifications are published in the Gazette of India bearing back dates, the notification will not take effect from the date printed in the Gazett but will take effect from the date when the Gazette was actually published and issued for sale to the public.
"We also rely on similar cases and (1975) 35 S.T.C. 319 on similar matters.
"Hence we request you that in view of what has been stated above that, while working the differential duty payable for the period 30-11-1982 to 7-12-1982 the same should be calculated taking in to consideration the date applicable as per the earlier Notification viz. 30/79 of 1-3- 1979.
"Thanking you, Yours faithfully, For ASIA TOBACCO CO. LIMITED Sd.
K.S.Murthy, Factory Manager."
"ASIA TOBACCO COMPANY LIMITED EX/450/306 November 15, 1983 The Assistant Collector of Central Excise, Hosur I.D.O., Bagalur Road, Hosur-635 109.
Dear Sir, "We refer to the correrpondence on the subject resing with your letter C. No. V/4/30/103/82 T-3 dated 19-9-1983 and send you photo copies of the cases reported in (1976) 37 S.T.C. 314 and (1975) 35 S.T.C. 319 respectivly from which all the relevant facts and circumstances under which the said judgments of the Honourable High Court were delivered will be apparent to you.
"We trust that after reading the aforesaid judgments of the Hon'ble High Court you will no doubt agree that their Lordships have laid down that since it is a matter of daily practice that Notifications are p;ublished in the Gazette of India bearing back dates as indeed it happended in the case of the rescinding Notification No. 284/82-C.E., dated 30-11-1982 which was in fact placed on sale for public on 8-12- 1982 the notification will not take effect from the date printed in teh Gazette but will take effect from the date when the Gazette was actually published and issued to the public.
"you will also no doubt that in view of the above judgments and in the facts of our case the rescinding Notification No. 284/82-C.E., dated 30-11-1982 can only be made effective with effect from 8th December 1982 the date on which the Gazette in question was in fact placed on sale for pubnlic as stated ikn the letter No. GAZ/Ex. 1179/83 dated 23-4-1983 from the Controller of Publications, Government of India, Department of Pubnlications, Civil Lines Delhi-110 054 a photo copy of which is enclosed.
"In view of the above we would request you to confirm that the differential duty calculated by us for the period from 30-11-1982 to 7-12-1982 taking into consideration the date applicable as perthe earlier Notification No. 30/79 of 1-3-1979 is in order.
"Thanking you, Yours faithfully, For Asia Tobacco Co. Limited, Sd.
K. S. Murthy, Factory Manager."
The second respondent, in his turn, would maintain that the differential duty for the period from 30-11-1982 to 7-12-1982 should be calculated only taking note of the withdrawal Notification and he wrote a letter to this effect to the petitioner on 22-2-1984 as follows :
"Office of the Assistant Collector of Central Excise, Hosur Division, Hosur-635 109 C. No. v/4/30/103/82-T. 3 22-02-1984 From The Assistant Collector of Central Excise, Hosur Division.
To M/s. Asia Tobacco Co. Ltd., No. 35, Rajaji Nagar, Hosur-635 126.
Gentlemen, Subject :- C.E.-Issue of natification No. 284/82-C.E., dated 30-11- 1982- Effective date for Natification-Regarding.
Reference :- Your letter No. CX/450/306 dated 15-11-1983.
---------
"Your representation that the effective date of the Notification No. 284/82-C-E., dated 30-11-1982 implementing the Tariff rate of duty on cigarettes takes effect only from 8-12-1982 is not entertained by the Collector of Central Excise, Coimbatore, as he observes that effective date of the said Notification is operative only from 30-11-1982 and not 8-12-1982, as claimed by you.
"Hence the differential duty for the period from 30-11-1982 to 7-12- 1982 should be calculated only at the rates prescribed in the Notification No. 284/82-C.E., dated 30-11-1982.
Yours faithfully, Sd.
(B. V. Bhatt) Assistant Collector.
Copy to the Superintendent of Central Excise Hosur IV Range.
"It should be ensured that the collection of duty for the period from 30-11-1982 to 7-12-1982, is only at the revised rates prescribed in the Notification No. 284/82-C-E., dated 30-11-1982.
"The action taken in this regard may plaease be sent to this office immediately as the Collector desires to know of the same."
The third respondent, on 9-3-1984, addressed the following letter to the petitioner :
"Office of the Superintendent of Central Excise, Hosur IV Range.
OC. No. 157/84 Dated 9-3-1984 To M/s. Asia Tobacco Co. Ltd., Hosur.
Gentlemen, Subject : Central Excise-Issue of Notification No. 284/82-C.E. Dated 30-11-1982. Effective date for Notification-Regarding.
Reference : Assistant Collector's C. No. V/4/30/103 T. 3, dated 22-2- 1984.
------
"Please refer to the letter of the Assistant Collector "Addressed to you and copy endorsed to this office.
"In this connection you are requested to kindly work out the differential duty, due for the period from 30-11-1982 to 7-12-1982 at the revised rates as per the Natification No. 284/82 dated 30-11-1982.
"You are also required to produce the copies of the concerned ARI's, Gatepasses etc., to this office urgently for necessary verification and issuing of demand for the different duty.
"This may please be treated as most urgent.
Yours faithfully, Sd.
Superintendent of Central Excise, Hosur IV Range.
Copy submitted tot he Assistant Collector of Central Excise Hosur Division for favour of information with reference to his C. No. V/4/30/103/82 T. 3 dated 22-2-1984".
This was followed by a further communication by the third respondent on 2-4-1984 in the following terms :
"Office of the Superintendent of Central Excise, Hosur IV Range, Hosur-635 126.
O.C. No. 165/84 Dated 2-4-1984 To M/s. Asia Tobacco Company Ltd., Hosur.
Gentlemen, Subject : C.E.-Cigarettes-T.I. 411(2)-Effective date for Natification No. 284/82-C.E., dated 30-11-1982-Differential duty for the period 30- 11-1982 to 7-12-1982-Issue of demand-Regarding.
----------
"You are hereby requested to pay the differential duty involved on the clearances of 62,064 M cigarettes effected furing 30-11-1982 to 7-12- 82 amounting to Rs. 4,36,611.79 (details given below) immediately as your representation regarding the effective date of Natification No. 284/82-C.E., dated 30-11-1982 is not entertained by the Collector of Central Excise, Coimbatore.
"The amount should be paid in the following manner :
1. Immediate payment of 50% of the above mentioned amount vide TR 6 challan and
2. A Bank guarantee for the rest the above duty amount as this period 30-11-1982 to 7-12-1982 has been covered by CMP No. 5861/1983 in W.A. No. 343/1983 of Madras High Court.
BED Rs. 2,19,754.69 AED Rs. 1,94,881.63 SED Rs. 21,975.47 ----------------------- Total Rs. 4,36,611.79 ------ -----------------
Sd/.
S. Padmanabhan, Superintendent of Central Excise, Hosur IV Range, Hosur.
Copy submitted to The Assistant Collector of Central Excise, Hosur with reference to AC's letter C. No. V/4/30/103/82 T. 3 dated 22-2-1984 for favour of information."
2. In the above background, the petitioner has approached this Court with the present three writ petitions. The prayer in W.P. No. 6048 of 1984 is for the issue of a writ of mandamus directing the respondents to refund all monies collected in pursuance of Notification NO. 284/82-CE, dated 30-11-1982 of the first respondent for the periof from 30-11-1982 to 7-12-1982 on clearances made during that period by the petitioner from its factory. The prayer in W.P. No. 6049 of 1984 is for the issue of a writ of declaration declaring that the Notification No. 284/82 issued by the first respondent will take effect only from 8-12-1982 in so far as the petitioner is concerned and pass such further or other orders. The prayer in W.P. No. 6050 of 1984 is for the issue of a writ of certiorati calling for the records of the second respondent in Order No. O.C. No. V/4/30/103/32-T3 dated 22-2-1984 and quash the said order of the second respondent in O.C. No. V/4/30/103/82-T3 dated 22-2-1984.
3. Though the prayers are different, yet, the grievance of the petitioner is base on only one aspect and that is, the Withdrawal Notification-though dated 30-11-1982, was in fact available to the public only on 8-12-1982 and hence, the Withdrawal Notification could be effective only from that date. Only on this basis the three prayers stand projected. Mr.R. Sashidharan, learned counsel for the petitioner, would submit that rule 8 of the Rule gives power to the Central Government to authorise exemption from duty, in special cases, and this power of exemption could be exercised only by notification in the official gazette as set out in rule 8(1) of the Rules and equally so, the power to withdraw the exemption could be exercised only by notification in the Official Gazette and notification in the official gazette has got a legal an dfactual portency and the mere printing of the Official Gazette without makin it available for circulation or putting it on sale for public would not make the notification effective either for the purpose of exemption or for the purpose of withdrawal of the exemption. The facts delineated above cannot be disputed and they are matters of record. The factual allegations with regard to th Withdrawal Notification being place on sale for public only on 8-12-1982 have been expressed in paragraph 10 of the affidavits filed in support of the writ petitions and they run as follows :
"I state that M/s. ITC Limited for whom the Petitioner manufactures the cigarettes addressed a letter to the Controller of Publications, Department of Publications, Government of India, New Delhi on 23-4- 1983 requesting information on the actual date of publication of the Gazette which contained Notification No. 284/82 dated 30-11-1982. The Controller of Publications vide his letter dated 23-4-1983 addressed to the Accountant, ITC Limited, stated that Notification No. 284/82, dated 30-11-1982 was placed on sale for public on 8-12-1982. It also explains why the third respondent did not demand duty at a higher rate on and after 30-11-1982 till 7-12-1982. It is clear that the second and third respondents were also not aware of the Notification 284/82 dated 30-11-1982 rescinding the earlier Notification 30/79 which provided for exemption on the tariff rates of duty applicable to the cigarettes."
In the counter affidavit filed on behalf of the respondents, the relevant averments in this behalf are found in paragraphs 5, 6, 11 and 12 thereof and they need extraction as follows :
"5.........In short they only condition that is prescribed in the rule is that the notification exempting or withdrawal the concession must be gazetted or made in the Official Gazette. The averment that the notification must be made available to the public is not germane to excise law. The petitioner is attempting to import the above condition to suti their needs, which is not prescribed. The notification No. 284/82 dated 30-11-1982 is effective only from 30-11-1982 and the respondent herein have not give any retrospective effect to the notification in question.
"6. In allegations contained in paragraph 10 are denied. The statement that the respondents were not aware of the Notification till 7-12-1982 is false and not correct. The respondents are expected to be aware that the Notification No. 30/79 which prescribed conecessional rate was rescinded by Notification No. 284/82 dated 30-11-1982 which was published in the Official Gazette (extraordinary) on 30-11-1982. In fact the draft notification in question was duly received by the Government of India Press on 30-11-1982 itself, for publication and G.S.R. No. has also been assigned to the notification on that day itself. Thus it could be seen that necessary changes in the Gazette of India Extraordinary on 30-11-1982 itself, and the very next date, the officers who are to effect clearances, (since cigarettes come under physical control) have also been informed by telex by the Government regarding the changes made in the rate of duty applicable to cigarettes with effect from 30-11-1982.
"11. Adverting to the averments in paragraphs 19 to 22, I submit that it is settled law that a subordinate legislation comes into effect in accordance with the mandatory directons contained in the parent Act or the relevant rules as the case may be. It is respectfully submitted that the judgment cited by the petitioner are distinguishable. In the cases cited, the Hon'ble courts were interpreting the provisions of law with reference to the conditions prescribed under relevant Act to give effect to the delegated legislation. I submit that the provisions of Central Excise Act, 1944 and the rules made thereunder are clear in this respect. As the notification in question was issued in exercise of the powers conferred under rule 8(1), the provisions/conditions contained therein has to be strictly construed to give effect to the notification. I state that the words `publish in Official Gazette' and terms `put up fo sale to public ' are not syhnonymous. Offiering for sale to public is a subsequent step which cannot be imported in the Act unless otherrwise specifically provided for in the Act itself. The notification in question was published on 30-11-1982 in the Gazette of India (extraordinary and takes effect immediately. The date appearing in the Official Gazette is conclusive proof that the notification has been vakidly made and published on the relevant date. As far as the notifications issued under rule 8(1) are concerned it comes into effect on the date it was made or issued. The theory of `sale to public' is foregin to excise law. The Central Excise Act, being a taxing statute applies uniformly throughout India. If the theory of `sale to public' is imported into the Act as contended, then there is every possibility that some manufacturers producing excisable goods elsewhere in India, will come up with a plea that the Official Gazette was not offered for sale at their place, hence the revised rate of duty is inapplicable to them. In such an evantuality, the provisions of the Act cannot be applied uniformly throughout India. With regard to the notifications issued under rule 8(1) both the revision in rate and exemption from duty are applied from the date on which the notification is made/published in the Official Gazette. In the instant case, the Notification No. 284/42 was published in the Gazette of India, Extraordinary, on 30-11-1982. The legal requirements to give effect to the notification has been complied with by publishing the notificaiton in the Gazette of India on that date. This notification relate tot he change of levy on cigarettes which is a mass consumption product. If the interpretation given by the petitioner is accepted, it would mean giving advance notice of the changes made to give effect to levy. It is well know fact that prior to budget, every year, because of speculation about increased levy on cigarettes unscrupulous elemeants are indulging in harding cigarettes and charging higher rates to make quick money. Such being the position, it is not in the public interest topublish a notification in the Gazette of India, extraordinary on one date and fix another date for giving effect to it.
"12. Once the notification is published in the Gazette of India on one date, it should be legally presumed to have been given publicity on that date itself. If any contrary view is taken, there would not be any uniformity in regard to the date on which the levy is to be given effect to and the purpose of publishing a notification in Gazette (extraordinary) will be defeated. The notification in question was given effect to only from the date on which it was published and not retrospectively. As regards the decisions cites, I state that the statutory provisions considered in those cases are not in pari material with the provisions of rule 8(1) of the Central Excise Rules, 1944 and hence the present case is distinguishable."
4. Thus we find that the respondents do not accept the stand of the petitioner that merely because the Official Gazette containing the Withdrawal Notification was place on sale for public on 8-12-1982, it would come into effect only on a from that date. Hence, the moot question that arises for consideration in these writ petitions is as to when the Withdrawal Notification must be deemed to have become effective and enforceable. Rule 8(1) of the Rules empowers the Central Government from time to time, by notification in the Official Gazette, to exemopt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on suh goos. There cannot be any dispute that any notification withdrawin gthe exemption must also go through the same process of getting notified in the Official Gazette. Can the bare oprinting of the Official Gazette containing th Withdrawal Notification and without the Official Gazette being made available for the public would amount to an effective notification ? As early as 1918, in Johnson v. Sargant and Sons- (1918) 1 KB 101), it was recognised that an order made by the Food Controller under the Defence of the Realm Regulations, though dated 16-5-1917, but was not known to the parties to the action or to the public genreally till 17-5-1917, would come into operation only when it became known, namely, on 17-5- 1917. Bailhache, J., who tried the action, observed as follows :
"The Order is dated May 16,1917; the goods were paid for by the three people concerned, within banking hours, on May 16,1917, although at what precise time on that day is not know. Nor do we know at what time on May 16 the Food Controller signed the Order. This, however, we do know, that the effect of the Order was published on May 17, and in all probability was well known to all persons interested in the trade knew about it on May, 16. Being dated May 16, it is said for the plaintiff that it took effect from the earlisest moment of that day by analogy to the rule with regard to the construction of statues. While I agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or on which it is declared to come into operation, threr is about statues a publicity even before they come into operation which is absent in the case of many Order such as that with which we are now dealing; indeed, if certain Orders are to be effective at all, it is essential that they should not be known until they are actually published. In the absence of authority upon the point I am unable to hold that this Order came into operation before it was know, and as I have said, it was not know until the morning of May 17."
5. In Haria v. The State of Rajasthan . the Supreme Court was concerned with the question as to whether a bare resolution made by the Council of Ministers in the erstwhile Princely State of Jaipur, without promulgation or publication in the Gazette or other means to other means to make the same known to the public was sufficient to make it law. The Supreme Court observed as follows:
"In the absence of any special law or custom, we are of opinion 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, at 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 public have 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 civilised 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." [para 468]
6. In Mahendra Lal v. State of U.P. , the Supreme Court held that a notification required to be published in the Gazette under section 4 of the Forest Act is of no effect unless it is so published.
7. Prof. C. K. Allen in Law and Orders (Second Edition) at page 132, referring to Johnson v. Sargant and Sons- [(1918) 1 KB 101], observes as follows :
"On the face of it, it would seem reasonable that legislation of any kind should not be binding until it has somehow been `made know' to the public ; but that is not the rule of law, and if it were, the automatic cogency of a statue which has received the royal assent would be seriously and most incoveniently impaired. In a solitary case, however, before the passing of the Act of 1946 (The Statutory Indstruments Act) Johnson v. Sargant, Bailhache, J held that an Order did not take effect until it became known. The reasoning was that statutes at least received the publicity of Parliamentary debate, and that therefore they were, or should obe, known but that this was not true of delegated legislation, which did not necessrily receive any publicity in Parliament or in any other way.
"This was bold example of judgment made law. There was no precedent for it, and indeed a decision, Jones v. Robson, (2902) 1 KB 673 which, which not on all fours, millitated strongly against the judge's 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 reviedw by ahigher court."
8. In State of Maharashtra v. M. H. George- , though the notification under section 8(1) of the Foreign Exchange Regulation Act, 1947, was in fact duly published in the Gazette of India, yet, it was argued to escape the scathe of the penal provisions that the accused had no knowledge of the notification since he was out of India and hence, it could not be deemed to be in force from the date of its issue or publication in Gazette, but only when it was brought to the notice of persons, who would be affected by it, and this argument was repelled by the majority judgment spoken to by Rajagopala Ayyangar, J. The learned Judge, though saw great force in the above comments of Prof. C. K. Allen on the reasoning in in Johnson v. Sargant and Sons (1918) 1 KB 101), was not averse to apply the ratio enunciated by Bailhache, J. to the facts of the cse before the Supreme Court. I feel obliged to refer to the following passages occurring in the judgment of Rajagopala Ayyangar,J :
"... Taking the present case, the question would immediately arise is it to be made known in India or thoughout the wourld, for the argument on behalf of the respondent was that when the respondent left Geneva on November 27, he was not aware of the change in the contents of the exemption granted by the Reserve Bank. 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 impposed for its violation.It is obvious that for an Indian law to operate and be effective in the territo ry where it operates, viz., the territory of india, it is not necessary that it should cither be published or be made known outside the country. Even if, therefore, the view enunciated by Bailhache,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 the notice of everyone who intends to pass through India. It was 'published' and mode known in India by publication in the Gazette on the 24th November andthe ignorance of it kby the respondent who is a foreigner is, in our opinion wholly irrelevant. It is, no doubt, admitted on behalf of the prosecution in the present case that the respondent did not have actual notice of the notification of the Reserve Bank dated November8, 1962 but, for the reasons stated it makes, in our opinion, no difference to his liability to be proceeded against for the contravention of s. 8(1) of the Act. "... Where there is a statutory requirement as to the mode or form of publication and they are such that,. in the circumstances, the Court holds to be mandatoryu, a failure to comply with those requirements might result in there being no effective order the contravention of which could be the subject opf prosecution but where there is no statutory requirement we conceive the rule dto 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 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 subordinte legislation to the notice of the persons concerned. As we have stated earlier. the notification by the Reserve Bank was published in the Gazette of India on November 24,1962 and hence even adopting the view of Bailhache, J. the notification must be deemed to have been published and brought to the notice of the concerned individuals on the 25th of November, 1962. The argument therefore, that the notification dated November 8, 1962 was not effective because it was not properly published in the sense of having been brought to the actual notice of the respondent must be rejected,"page 743 The above observations make it clear that the notification in question was `published' and made known in India by publication in the Gazette on the date concewrned. Hence the ignorance of the accused, though abroad, was held to be wholly irrelevant. The significance of publishing and making known by publication has been taken note of by the learned Judge. 9. In Jagjit Singh v.State - , the argument that printing of a notive in the Official Gasette, if it was not out of the press, could not be deemed to be a good notive for the public at large , was countenanced to be one with considerable force, though the matter has got to be disposed of on other points by the Court. 10. In R.Narayana Reddy v. State of Andhra Pradesh-(1969) 1 An. W.R.77), Chinnappa Reddy, j., as he then was, observed as follows: "The idea that a person may be governed by a law that cannot be known by him because it is not punlished orpromulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour of totalitarianism and of the gestapo. It is repugnant to the princi;les of justive, freedom, equality and fraternity, cherished by all lovers of democracy and enshrined in our Constitution. "subordinate legislation 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 take effect from the date of such publication or promulgation, that mode dmust be followed, but where the stature is silent, the question arises what is sthe mode of publication or promulgation to be adopted. The subordinate legislation itself may prescribe the manner of publication, in which case such mode, if adopted may be sufficient if reasonable . I am guardedly adding the words if reasonable because it isnoteasy to visualise cases where the mode of publication prescribed by subordinate legislation may be wholly unsuitable.If affixture on the notice board of the Central Secretariat of rules under enactments or universal applivation in the country is priscreibed as the mode of publication,prescribed by subordiatee legislation may be wholly unsuitable. If affixture on the notice board of The Central Secretariat of rules under enactments or universal application in the country is prescribed as the mode of publication. If the subordinate legislation does not prescribe a mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication. It will take effect only when it is published, though the channel now customarily recognised in our country as the appropriate channel through which official orders are made known to the public namely, the official Gazette. In my view subordinaate legislation of a general nature takes effect on the date when it is published in the Official Gazette, except where statute provides otherwise or where the subordinate legislation itself provides a different byt reasonable mode of publication."
11. In G. Narayana Reddy v. State of Andhra-[(1975) 35 STC319],a Bench of the High Court of Andhra Pradesh found that the cooncerned notification was printed and released to the public only on 12-12- 1966, though the Gazette bore the date 1-12-1966, and the authorities were restrained from giving effect to the notification between the period 1-12-1966 and 11-12-1966, both days inclusive, anterior to the printing and release to the public of the said notification.
12. In Yemmiganur Spinning Mills Ltd. v. State of A.P.-[(1976) 37 STC 314], a Brmch of the High Court of Andhra Pradesh, consisting of Chiinnappa Reddy. J., as he then was, and Jeevan Reddy, J. dealth with a case where a Government order rescinding the exemption under section 9 of the Andhra Pradesh General Sales Tax Act, 1957, with effect from 19-4-1971 by notification dated 18-5-1971, was published in the Andhra Pradesh Gazette on 1-7-1971,and after referring to a number of pronouncements, it was held that the notification was effective and enforceable only on and from 1-7-1971, the date of its publication in the Andhra Pradesh Gazette and not with effect from any earlier date. Jeevan Reddy, J. speaking for the Bench, observed as follows:
"Now, for an effective administration of law, it iis essential to observe the rule that ignorance of law iis no excuse. But before the knowledge of law is attriibuted to every member of the public, the law must be published or promulgated for general information." page 316 The learned Judge also referred to the observations of Chinnappa Reddy, J.,as he then was, in the earlier case, extracted above.
13. in State of M.P. v. Ram Ragubir Prasad- , while construing the set oof expressions "publish the same in such manner as may be prescribed" occurrring in section 3 of the M.P. Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavstha) Adhiniyam (13 of 1973), Krishna lyer, J., observed as follows:
"...To publish a news item is to make known to people in general; 'an advising of the public or making known of something to the public for a purpose' (Black's Legal Dictionary, p. 1386). In our view, the purpose ofS. 3 aninates the meaning of the expression 'publish'. publication is the act of 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." page 395
14. The mere printing of the Offcial Gazette containing the relevant notification and without making the same available for ciiruculation 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 OOfficial Gazette is that in the case of either grant or withdrawal of exemption th epublic must come to know of the same. 'Notify' even according to ordinary dictionary meaning would be "to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to infooorm". It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notificsation is merely printed in the Offical Gazette without making the same available for circulation to the public or putting it on sale too the public. The communicatiion from the Department of Publication, Government of India, dated 23-4-1983, as per extract made above, leaves no room for doubt that the oofficial Gazette containing the Withdrawal Notification was placed on sale for public only on 8-12-1982. Without a proper notification in the sense, without putting the public on notice of the same, it is not possible to enforce the withdrawal of the exemption earlier accorded. It is not a case of printing, (may be anteerior to the publishing) and releasing to the public, the notification, on the same date which the Official Gazette bears. Neither the date of the notification nor the date of printing, nor the date of the Gazette counts for 'notificatioon' within the meaning of the rule, but only the date when the public gets notified in the sense, thje concerned Gazette is made available to the public. The date of release of the publication is the decisive date oof release of the publication is the decisive date to make the notification effective. printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all. But, so far as the petitioner is concerned, we find that by the communication from the thrid respondent dated 6-12- 1982, which obviously was received by the petitioner on 7-12-1982, the petitioner was put on notice of the Withdrawal Notification. Hence, the Withdrawal Notification must be held to be eeffective so far as the petitioner is concerned only from 7-12-1982. The consequence oof lack of due notification is that the Withdrawal Notification became effective so far as the petitioner is concerned only on and froom 7- 12-1982. It had no legal efficacy anterior to that date. The respomdents have not denied thee factual position that the Official Gazette containing the Withdrawal Notification, though dated 30-11- 1982 was, in fact, place on sale for public only on 8-12-1982. The respomdemnts are taking up a stand that the petitoner is expected to be aware of the Withdrawal Notification and that the wrods 'publish in Ofical Gazette' and the words 'put up for sale to public' are not synonymous and offering for sale to public is a su sequent step which cannot be imported into the Act, and the respondentts 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 oof due notification, as exemplified aboove. Printing the notification in the Offical Gazette, without making it available for circulation to the conerned public, or placing it for sale to the said public, woould certainly not satisfy the idea of notification in the legal sense. One of the stands taken by the respondents is that the Officers concerned have been informed by Telex by the Government regarding the Withdrawal Notification, as if that would suffice the conception of the due notifcation. A similar contention was repelled by the Supreme Court in State of M.P. v. Ram RAgubir Prasad by pointing out "contextually speaking, we are satisfied that 'publication' means more than mere comminication to concerned Officials oor Departments". If this is the legal and factual position, then, with regard to W. P. No. 6049 of 1984, it will stand allowed and a writ of declaration will issue declaring that the Withdrawal Notification took effect only from 7-12-1982 so far as the petitioner is concerned.
15. With regard to W.P. No. 6050 of 1984, that relates to the order dated 22-2-1984 whereby the second respondent oopined and reiterated the stand that the Withdrawal Notification will be effective from 30- 11-1982. The very same reasons expressed by me above oblige me to countenance the prayer in this writ petition also and accordingly. W.P. No. 6050 of 1984 is allowed.
Coming to W.P. No. 6048 of 1984, once it is held that so far as the petitioner in concerned the Withoudrawal Notification could be effective only from 7-12-1982, the moneys collected in enforcement of the Witdrawal Notification for the relevant period anterior to 7-12- 1982 naturally will have to be refunded. When duty has been collected in enforcement of the Withdrawal Notification, which became efficaious in the eye of law only on and from 7-12-1982, so far as the petitoner is concerned, then the very collection is one which did not have the authority of law within the meaning of Article 265 of the Constitution of India and the Government to whom such payment was made, is duty bound to repay it to the citizen, who suffered this illegal imposition. In the said circumstances, this Court, under Article 226 of the Constitution of India, has got jurisdiction and power for the purpose of enforcement of fundamental rights and statutory rights to give the consequential relief by ordering repayment of moneys realised by the Goverment without the authority of law. It would suffice the purpose if the following principles recorgnised by Krishna lyer, J. in Shiv Shanker Dal Mills v. Haryana- are adverted to:
"Article 226 grants an extraordinary rmedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this ffexible power, to pass such order as public interest dictates and equity projects.
"Where public bodies, under colour of public laws, recover people's moneys, later discoered to be errioneous levies the dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belkongs. Nor is it plaltable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of 'alternative remedy', since the root principle of law married to justice, is ubi jus ibi remedium." -head-note However, Mr. Krishnan, learned Additional Central Government Stading Counsel appearing for the respondents, would submit that if it is a case of refund, that ought to have been applied for within the stipulated period as set out in section 11B of the Central Excises and Salt Act, 1944 and in the instant case, no such application has been made within time and hence this Court shall not coountenance the prayer for refund. In answer, Mr.R. Sashidharan, learned counsel for the petitner, would state that the payment was made only provisonally and that too, without prejudice to the rights of the petitoner and evenassuming that there should be a formal claim for refund, that could be amde after the final assessment has been made, and, in the instant case, that stage has not reached and hence, there is no time bar for ordering refund as on date. I do not feel obliged to go into these aspects at all for the simple reason, this is not a case where the repondents were and are prepared to consider the claim for refund of duty on merits, except for the fact that there is a laps of any prescribed time. The stand of the respomdents has been expressed in unambiguous terms that there is no qestion of refued at all because, according to them, the date of the Official Gazette is the decisive date on and from which the withdrawal Notification becomes effective and the duty collected is in order. This stand is a legal fallacy on facts. Furthermore, the petitoner has also categorically averred that it was clearing cigarettes manufactured at its factory regularly at the rates specified in the Exemption Notifcation, depending on the assessable value and a total quantity of 62,064 million cigarettes have been cleared between the relevant dates. this is in complete ignorance of the Withodrawal Notification. On 10-12-1982, when the petitoner made the payments, of course, wthout prejandice, it was not awaer of the legal position with regard to the legalefficancy of the Withddrawal Notification becoming operative only on and from 7-12- 1982. The payment was an erroneous payment in law. Even if thepayment has been made voluntarily, it would not perate as eztoppel. The payment has been made obviously, in ignorance of and on a miconception of the legal position that the demand was illegal. What was not legally due has been recopvered and the Government is bound to refund the same. In its letter dated 10-12-1982, the petitioner had stated that a copy of the Withdrawal Notification had not been handed over to it. The respondents, on the other hand, were also insiting under a patently erroneous misconception of law that the Withdrawal Notification was effective even from 30-11-1982, though it was not duly notifed in the eye of law, and they were prompted to insist for, demand and collect the duty only on this erroneous basis in law. Hence, on the date of payment, both the parties were sufering from a misconception of the legal position. Viewed in this light, the time limit, if any, prescribed in the sepcial statue which may govern the contingencies arising under itr only, need not be counted, and the ordinary law of limitation could be applied on the basis that the levy and collection of duty are the result of misconception in law and, if so applied, there could not be any time bar. this is apart from the factual contention on behalf of the petitoner that even under the Act, time has not run out. In any event, once it is found that the levccy and collection of duty are invaliad in law or in other words have no sanctin in law on the basis of the declaration that the Withdrawal Notification did not take effect earlier to 7-12-1982, this Court exercising under Articel 226 of the Constitution of India, after according the due declaration to that effect, can direct refund of the duty illegally collected. the restrictions as to limitations as found in the Act and the Rule cannot come in the way of the writ juridiction of this Court.
17. Now it is admitted before me that the last clearance date was only 5-12-1982 and in fact, the payment made, though without prejudice, covers the period from 30-11-1982 to 5-12-1982 only. Hence W.P.NO. 6048 of 1984 is allowed and the repondents are directed to refund the money collected from the petitoner for the period from 30-11-1982 to 5-12-1982 in enforcement of the Withdrawal Notification, ignoring the earlier Exemption Notification. I make no order as to costs in all these writ petitions.