Customs, Excise and Gold Tribunal - Delhi
Haryana Plywood Industries vs Collector Of Customs on 24 July, 1990
Equivalent citations: 1991(51)ELT119(TRI-DEL)
ORDER S.K. Bhatnagar, Member (T)
1. This is an appeal against the order of the Collector of Customs (Appeals), Calcutta dated 28-11-1988.
2. The appellants moved a Misc. application No. C/Misc/328/89-D which was disposed of by this Bench order No. M-195/89-D dated 27-11-1989 which is reproduced below :-
"Order No. M-195/89-D 2A. Ld. Counsel stated that this application has been filed in connection with their appeal No. CD/A-1122/89-D
2.B They had presented a Bill of Entry on 6-10-1986 and the goods were allowed to be cleared on the basis of the exemption claimed by them. However, subsequently, they received a demand notice asking them to pay the duty in question.
3. No particular reason was given in the demand notice.
4. They had replied to this notice and the Assistant Collr. passed the order-in-original apparently without taking their reply into account and again without assigning any reason for demand of the differential duty.
5. Their appeal was also rejected by the Collector (Appeals).
6. The issue, however, appears to centre around the gazette notification dated 6th Oct. 1986 which includes Notfn. No. 439/86-Cus. This notification amends Notification No.62/85 and if applied would result in a higher rate of duty than at which the goods were assessed. Since the bill of entry was presented on 6-10-1986 and the duty was paid on 8-10-1986, it appears that the Deptt.'s case is (although not so stated in the notice or in the order-in-original enclosed) that the Notification No. 439/86 having been published in the Gazette dated 6-10-1986 was applicable and consequentially the differential duty demand was due.
7. In this connection, admittedly Notification No. 439/86-Cus. is dated 6th Oct. 1986 and was published in the Gazette notification on Oct. 6, 1986. However, the appellants' contention is that although the Gazette notification is dated 6th Oct., 1986 it was actually not released for sale on that date but on a subsequent date. Since the date of publication was crucial, they had requested the Collector (Appeals) to ascertain the same and then pass appropriate orders. However, the 1d. Collector (Appeals) did not accede to their request. Before he could pass the order, they, however, procured a letter from the Depot at Calcutta (which is at Annex. IX) from which it could be seen that it was put up for sale in Calcutta on 29-1-1987. However, the date on which it was put up for sale at Delhi is not known. They had, therefore, requested the Director of Publications to issue them a certificate indicating the date of releasing it for sale, the reason being that in a number of Court judgments, it has been held that it is not the date indicated on the Gazette notification but the date on which it was actually released for sale which was important and was required to be taken into account.
8. The Collector, however, regretted that he could not issue such a certificate in view of the directions from the CBEC. Accordingly, they addressed a letter to the CBEC and the Commissioner, Tax Research, replied to them. The correspondence exchanged is at Annex. XIII to the application.
9. From this, it is apparent that the CBEC and the Commissioner are coming in the way of their getting the relevant information. Since the whole case revolves around this factual information, the matter cannot be correctly adjudicated in the absence of this information. Hence, it was their prayer that this information may be called for.
10. In this connection, they would like to mention that the Tribunal has the powers to a Civil Court in terms of Section 129-C to summon any document and/or summon any paper to produce evidence. In the interests of justice, the court is empowered to take recourse to the relevant Sections of the Evidence Act for this purpose. Mr. Jain in particular drew attention to Section 30 CPC and Section 57 and 78 of the Evidence Act in this connection. It was his submission that reading these provisions of law together, the Tribunal was competent to summon the Controller of Publications or direct him to file any document indicating or certifying the required date and it was also his submission that the Tribunal could also invoke Rule 40 and 41 of the CEGAT (Procedure) Rules and issue suitable directions to the CBEC and the Commissioner, Tax Research to rescind their directions which was coming in their way of obtaining the relevant information. It was also his contention that even otherwise, this being a case of demand, the burden of proving the date on which the notification had actually come into force was on the Deptt. It was also his submission that since the lower authorities have not made any enquiries in this regard and also not looked into the above aspects of the matter, appropriate orders may be passed with reference to the same.
11. The Ld. JDR stated that it is the appellants who had initially claimed the benefit of the notification which was allowed to them. The benefit was, however, incorrectly allowed by the assessing officer. Perhaps he did not notice that the rescinding notification had come into force on the date of presentation of the Bill of Entry. It was also his contention that the Respondent in this case is the Collector of Customs, Calcutta and not the CBEC or the Commissioner, Tax Research. Under the circumstances, the Tribunal could give appropriate directions only to the said Collector and not the CBEC or other officers. It was also his contention that Section 30 of CPC and Section 74 and 78 of the Evidence Act were not required to be invoked and were not relevant. In this connection, he would also like to state that the instructions issued by the CBEC and the Commissioner were behind the stage and need not be looked into. It was also his alternative submission that he has no objection if the matter was remanded.
12. Ld. Consultant stated that Section 74 refers to public documents and a Gazette notification is a public document and Section 76 refers to certified copies of public documents which any person has a right to inspect. Section 78 refers to all Acts, orders or notifications and other official documents and Section 57 relates to facts of which Courts must take judicial notice and sub-clause (1) relates to all laws in force in the territory of India and sub-clause (2) relates to all public acts passed by Parliament.
13. He further contended that since Section 129C refers to the powers of Civil Court that the Tribunal could exercise as such, in terms of Section 129C these Sections of the Evidence Act could also be taken cognizance of. Even otherwise, the principles of evidence were applicable to the proceedings before the Tribunal.
14. It was also his contention that CBEC is the principal Deptt. authority under which the Collectors, Commissioners and other authorities function and under Rule 40 and 41 of the CEGAT (Procedure) Rules, the Tribunal could give directions to any departmental authority for various purposes mentioned therein in the interests of jus-tice and directions are required to be issued in this case.
15. A remand at this stage would cause undue hardship to the appellants as the matter has already been pending for a long period, he added.
16. In response to a Court question both the sides could not indicate the designation of the officer who had assessed the Bill of Entry.
17. We find that the ld. Consultant's pleadings have a lot of force.
18. The demand notice apparently gives no reasons for the amount in question. It merely indicates the notification number and date which, by itself, was not sufficient.
19. The Assistant Collector has passed an ex parte order apparently without taking into account the appellant's reply and without granting a hearing. Furthermore, he has not given any reason for the decision taken.
In other words, the Order-in-Original is not a speaking order.
20. That apart, the bench had raised a query as to who had assessed the bill of entry. But both the sides could not enlighten the court in this regard.
21. The order of the Asstt. Collector and the order of the Collector (Appeals) also do not help us in this respect. An answer was, however, called for in order to decide as to whether the order-in-original had been passed by the proper officer. Since it is well known that most of the bill of entries are countersigned by the Asstt. Collectors, it was necessary to know whether in this case assessment was done by Assistant Collector or not. In the former case, he will not be competent to pass the order in question but this aspect has not engaged the attention of the authorities below and the Ld. Deptt. Representative has not been able to throw light on this point. Even if, however, the Assistant Collector was competent to pass the order in question, the above noted infirmities render the order defective.
21A. Since no ground has been indicated in either the Demand notice or the Order-in-Original, presumably the grounds have been inferred at the appellate stage which was rather unusual.
22. Both the sides have urged before us that the main issue was, as to with effect from which date the notification in question came into force. In this connection, we notice that the Ld. Collector (Appeals) has himself accepted the appellant's argument that the 'Notification should be applicable from the date it is put on sale for public'. He has, however, not accepted the date indicated by the appellants on the ground that the appellants have failed to produce documentary evidence in support of their contention.
23. In our opinion, a gazette notification bearing a particular date is presumed to be published on the date indicated thereon unless proved otherwise. If it can be shown that it was actually published on a date subsequent to the one indicated on it, then it is the date of actual publication (i.e. the act of making it public) which will be the relevant date with effect from which it would come into force. This proposition having been accepted by the Collector (Appeals), he should have caused enquiries to be made in this regard. In any case, since the demand had been raised by the Deptt. the burden of proving that the notification had come into force on the date indicated thereon rested on the Deptt. and it was not fair to shift this burden on the appellant. Indeed, the Deptt. itself should have come forward with the factual information in the interest of justice. In any case, the Deptt. should have assisted the other side in obtaining the correct information and making it available to be Appellate authority. In any eventuality, it should not have come in the way of the Appellants obtaining this information from the authorities concerned. The learned Consultant has shown before us as to how they had made efforts to obtain the factual information and how this effort was thwarted by the Deptt. of Revenue. This, to our mind, was rather unusual. It shows that the executive Wing of the Deptt. of Revenue was not allowing the full facts to be brought to the notice of the Appellate Wing of the same Deptt. The learned Consultant's pleadings in fact imply that the departmental action amounts to causing obstruction to the course of justice.
24. However, we may also mention that in a similar matter (which had recently come up) the Ld. Departmental Representative readily agreed to obtain and submit such information. In view of this position, there does not appear to be any need to take recourse to Section 129C(7) at this stage and it would be sufficient to direct that the Departmental Representatives may report to the Tribunal the date on which the relevant Gazette notification was actually made available to public in this case.
It is ordered accordingly.
Further, we note that during the course of hearing this application practically the whole case has already been covered and in view of the infirmities which have come to light the matter could be disposed of straightaway subject to consent of both the sides and an appropriate prayer in this regard.
25. With these observations, the application is disposed of."
26. Subsequently the case was fixed for further hearing. During this hearing the learned S.D.R. submitted that the advocate of the appellant had requested that date of publication in the Gazette of India as well as the fact that the notification was made available for whole of the public may be communicated and the Hon'ble Bench had directed that these dates may be disclosed. Accordingly copies of the letter No. Gaz./161774/89 dated 29-01-1990 from the Department of Publication, Ministry of Urban Development may be taken on record. He further submitted that according to this letter the said notification was published in the Gazette of India Extra-ordinary Pt. II Section 3, sub-section(i) Issue No. 471 dated 6-10-1986 which was made available for sale to the public on 13-10-1986.
27. The learned counsel for the appellants stated from the information supplied by the appellants it is clear that the goods had been cleared on payment of duty before the notification enhancing the rate of duty was made public. Hence the demand was not justified and they were not liable to pay the extra amount demanded.
28. We have considered the submissions of both the sides. We hold that a gazette notification does not become effective on the date on which it is printed unless it is made available to the public on the same date. It is not the date indicated on the Gazette notification but the actual date on which it is made public is important to determine the date on which the new notification comes into force. In this connection our attention has been rightly drawn to the judgment of the Hon'ble Rajasthan High Court in the case of Jagjit Singh v. State of Rajasthan (AIR 1968 Raj. 24) and the order of the Tribunal in the case of Salem Co-operative Sugar Mills Ltd. reported in 1987 (30) ELT 599. In the instant case the goods had been admittedly assessed and cleared on payment of duty before 13-10-1986, the date on which the Notification No. 439/86-Cus., dated 6-10-1986 was published. Hence the demand of the amount in question was not justified and the appellants were not liable to pay the additional sum. In view of this position the order of the authorities below is set aside and the appeal is accepted.