Customs, Excise and Gold Tribunal - Tamil Nadu
Brakes India Ltd. vs Cc on 10 July, 1998
Equivalent citations: 1998(79)ECR317(TRI.-CHENNAI)
ORDER Jyoti Balasundaram, Member (J)
1. The issue for determination in this appeal is the date of coming into effect of Notification 186/84 dated 22.6.1984 whether on the date of its printing in the official gazette as held by the Department or 6.7.1984 when the appellants claimed that the gazette Notification dated 22.6.1984 was made available for sale to the public.
2. The facts in brief are that the appellants imported cold rolled steel sheets and the bill of entry was assessed to duty @ 40% + 30% additional duty + Rs. 650/- PMT CVD under Heading 73.13 (1) of the CTA, 1975. The bill of entry for warehousing was assessed to duty on 10.4.1984 and the entire consignment was cleared under Ex-Bond Bill of Entry dated 22.6.1984 on which date the goods were also actually removed. A less charge demand notice was issued under Section 28 (1) of the Customs Act, 1962 on the ground that the correct rate as per Notification 186/84 was 60% + 40% additional duty + CVD. This less charge demand was confirmed holding that the enhanced rate of duty was applicable under the Notification w.e.f. 22.6.1984 itself and rejecting the importers contention that the Notification takes effect from the date when the Gazette Notification was published and issued for sale to the public. This order was upheld by the Collector (Appeals) and hence this appeal before the Tribunal.
3. We have heard Shri M.A. Rangaswami, learned Counsel and Shri K.K. Jha, learned SDR.
4. There is no challenge in the appeal before us that the Gazette in question containing Notification 186/84 dated 22.6.1984 was printed on a date subsequent to that date. What is emphasised in the appeal and argued before us is only that the Gazette was made available to the public subsequently. This being the position, the judgment of the Hon'ble Supreme Court in the case of Pankaj Jain Agencies reported in 1994 (72) ELT 805 SC : 1994 (55) ECR 28 (SC) in our view, applies on all fours. In that judgment it has been held that the relevant date of coming into effect of a Notification is the date of its publication in the official Gazette, which is the mode of publication prescribed by Section 25(1) of the Customs Act and not the date on which the Gazette was made available to the public. We note the learned Counsel's submission that the appeal filed by the Revenue against the order of the Tribunal in the case of Haryana Plywood Industries wherein the Tribunal has held that the date on which the Notification is made known is the date of coming into force of the Notification, has been dismissed, thereby confirming the order of the Tribunal in that case. However, a perusal of the order of the Supreme Court shows that it has been dismissed, stating as follows: "Heard dismissed". It is not possible to accept the learned Counsel's contention that the judgment in the Pankaj Jain Agencies case was noted and a different view taken therefrom, particularly in view of the fact that the Revenue's petition has been filed before the Supreme Court's judgment in the Pankaj Jain case. Respectfully, following the ratio of the judgment in the case of Pankaj Jain Agencies which has since been followed by the Tribunal in the case of Reliance Industries Ltd. v. Collector of Customs, Bombay final order No. 284/95-C dated 29.9.1995, and the majority view of the Tribunal in the case of ITC Ltd. v. CCE, Bombay, dated 18.3.1996, we uphold the impugned order and reject the appeal.
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(Jyoti Balasundaram) Member (J) Shri S.K. Bhatnagar, Vice-President
5. With due respects to Hon'ble Member (J), my views and orders in the matter are as follows.
6. I observe that the learned Counsel is correct in pointing out that the present case is identical to the one decided by this very Bench in the case of Hanyana Plywood Industries v. Collector of Customs in which it was held inter-alia that in the normal course, the date printed on the notification is the date of coming into force of the notification but it is in the nature of a rebutable presumption and therefore, if in any given case, it could be shown that the notification was not published on the date printed on it, then it is the date of actual publication which will be the effective date of coming into force of the notification. Learned Counsel has filed a copy of the Hon'ble Supreme Court's order dated 19.3.1996 in C.A. No. 254 of 1991 dismissing an appeal against the above order of the Tribunal. The net result is that the Tribunal's order remains alive and in full force. This Bench is, therefore, required to apply the ratio thereof in all identical matters."
7. The fact that in the case of Pankaj Jain Agencies v. Union of India . Hon'ble Supreme Court had earlier held that it is the date of the notification which determines the date of its coming into force is undoubtedly true but, we have to read that judgment and interpret it in the light of above developments.
8. In my opinion, there is a difference between the date of publication and the date on which it may become known in a particular place or to an individual or individuals. What the Hon'ble Supreme Court means in the case of Pankaj Jain's case is that we cannot go by the date on which a person or persons come to know about it by virtue of its being made available for sale or otherwise and it is not this date but the date of the notification which is relevant for the purpose of determining the relevant date for enforcement.
9. In my opinion, the date of notification in this context will have to be considered as the actual date of publication and not the date on which it was sent for printing or publication and which therefore, got printed on its body. The date of publication is an ascertainable date and once it is so published, it is immaterial on which date a person or persons in a particular place or other came to know about it.
10. This interpretation would amount to a harmonious reading of both the judgements of the Hon'ble Supreme Court taken together and would, as far as I can see, reflect the intention behind the dismissal of the appeal against Tribunal's order in Haryana Plywood Industries case.
11. Whether the Pankaj Jain's case was brought to the notice of the Hon'ble Supreme Court during the aforesaid proceedings in Haryana Plywood Industries case is not for us to look into in the absence of any material for or against this preposition and it cannot be presumed that Hon'ble Supreme Court was not aware of its own previous judgement. I further observe that learned Counsel has also stated at the bar that Calcutta and other High Courts' judgements which had taken the same line as taken by the Tribunal in Haryana Plywood Industries case was specifically brought to the notice of the Hon'ble Supreme Court in these proceedings.
12. In any eventuality, we are concerned here with the result of the proceed-mgs and that result is that the appeal against Tribunal's order in Haryana Plywood Industries case has been dismissed by the Hon'ble Supreme Court and therefore, it continues to hold the field.
13. The Tribunal's order in the case of Reliance Industries Ltd. v. Collector of Customs, Bombay (final order No. 284/95-C dated 29.9.1995) and majority opinion in the case of ITC Ltd. v. CCE, Bombay have naturally followed the Pankaj Jain case. This however, does not affect the above situation because Hon'ble Supreme Court's judgment in the case of Haryana Plywood Industries had not been delivered by then.
14. Furthermore, following the practice of applying the later the better principle also, it is the later order of the Supreme Court which takes precedence.
15. In any case, as discussed above, a harmonious interpretation was possible and following such an interpretation, it is not the date of printing but the date of actual publication (i.e. the date on which it was made public as distinct from the date on which it was put up for sale to the public or became known to any particular individual (s) personally or otherwise which would be the relevant date for at a place) coming into force of the notification. And, a duty is cast on the Departmental Authorities to ascertain such a date in terms of the Tribunal's order in the case of Haryana Plywood Industries (supra).
16. The impugned orders are, therefore, set aside and the matter remanded to the Assistant Collector/Assistant Commissioner for taking action accordingly.
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New Delhi (S.K. Bhatnagar) Dated: 10.10.1996 Vice-President Point of Difference
17. In view of the difference of opinion between Hon'ble Member (Judicial) and the Vice-President, the matter is submitted to Hon'ble President for reference to a Third Member on the following point:
Whether in view of the Hon'ble Supreme Court's judgment in the case of Pankaj Jain Agencies (supra), the appeal was required to be rejected as proposed by Hon'ble Member (Judicial) or in view of Hon'ble Supreme Court's judgment dismissing the appeal against the Tribunal's older in the case of Haryana Plywood Industries (supra), the matter was required to be remanded for de-novo consideration in the light of observations and findings of the Vice-President.
Sd/- Sd/- (Jyoti Balasundaram) S.K. Bhatnagar) Member (J) Vice-President Hon'ble President S.S. Kang, Member (J): 18. The following point is referred to the Third Member:
Whether in view of the Hon'ble Supreme Court judgment in the case of Pankaj Jain Agencies (supra), the appeal was required to be rejected as proposed by Hon'ble Member (Judicial) or in view of Hon'ble Supreme Court's judgment dismissing the appeal against the Tribunal's order in the case of Haryana Plywood Industries (supra), the matter is required to be remanded for de novo consideration in the light of observations and findings of the Vice-President.
19. Learned Counsel appearing on behalf of the appellants submits that now the issue is decided by the Hon'ble Supreme Court in the case of CCE v. New Tobacco Co. . She submits that the Hon'ble Supreme Court in this case held that "If publication is through a Gazette, then mere printing of it in the Gazette would not be enough unless the Gazette containing the notification is made available to the public. She submits that the view taken by the Hon'ble Vice-President finds support from the decision of Hon'ble Supreme Court.
20. Heard Shri A.M. Tilak, JDR on behalf of the Revenue.
21. In this case the difference on the point whether the Notification will come into effect on the date of publication of the official Gazette as held by the Supreme Court in the case of Pankaj Jain Agencies v. UOI . I find that the Hon'ble Supreme Court in the case of CCE v. New Tobacco Co. (supra) after considering the earlier decision in the case of Pankaj Jain Agencies v. UOI held that when the Notification is published in the official gazette, then mere printing of it in the gazette is not enough unless the gazette containing the notification is made available to the public, the notification cannot be said to have been duly published. The Hon'ble Supreme Court para 12 has held as under:
12. We hold that Central Excise Notification can be said to have been published except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published.
22. In view of the above-mentioned decision of the Hon'ble Supreme Court, I agree with the finding arrived at by the Hon'ble Vice-President and the matter is required to be remanded for de novo consideration. Matter be placed before the regular Bench for appropriate orders.
Dictated and pronounced in Court.
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(S.S. Kang)
Dt. 14.5.1998 Member (Judicial)
MATORITY ORDER
23. The impugned order is set aside and the matter is remanded to the Assistant Commissioner to ascertain the date of actual publication of Notificataion No. 186/84 dated 22.6.1984 in the Official Gazette.
Sd/- Sd/ (V.K. Agarwal) (Jyoti Balasundaram) Member (Technical) Dt. 19.6.1998 Member (Judicial) Pronounced in Court on 10.7.1998.