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The Salt Cess Act, 1953
Harla vs The State Of Rajasthan on 24 September, 1951
Chemifine vs Union Of India on 9 March, 1994
D.B. Raju vs H.J. Kantharaj And Others on 13 July, 1990
B.K. Srinivasan & Another Etc. Etc vs State Of Karnataka & Ors on 19 January, 1987

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radio
Customs, Excise and Gold Tribunal - Mumbai broadcasting
I.T.C. Ltd. vs Collector Of Central Excise on 9 November, 1994 subordinate legislation
public notification
Equivalent citations: 1995 (75) ELT 922 Tri Mumbai
media
ORDER
R. Jayaraman, Member (T) Press Release No : 110
tobacco
1. This is an appeal against the Order-in-Appeal No. PPM-580/B-I-320/86, dated 25th July, 1986.
v.raju
all india radio
2. The appellants are manufacturers of cigarettes. The dispute in the appeal relates to the rates of duty
harla
applicable, only in regard to clearances of cigarettes effected on 25-3-1985 and on 2-9-1985. Prior to
salt
25-3-1985, excise duty was payable in accordance with Notification No. 201/83, dated 4-8-1983. By
date of publication
two notifications Nos. 100/85 and 105/85 both dated 25-3-1985, cigarettes were subject to special
central excise rules
excise duty and the rates of basic and additional excise duties were also increased. By Notification No.
cases on agency
102/85, dated 25-3-1985, Notification 201/83, dated 4-8-1983 was also rescinded. As a result of these
date of effect of notification
changes in the rates of duty applicable to cigarettes, they were directed to pay the enhanced duties from
customs act,1962
25-3-1985. The appellants effected clearances on 25-3-1985 in accordance with the effective rates laid
srinivasan
down under Notification 201/83, which, as already stated above, stood rescinded by a notification of
section 38
that date. Likewise by Notifications 201/85 and 203/85 both dated 2-9-1985, changes were effected in
the rate structure applicable to cigarettes. By Notification 202/85, dated 2-9-1985, earlier notification
prescribing the effective rate was rescinded, requiring the appellants to pay the enhanced duty on 2-9-
1985. However, the appellants effected clearances of cigarettes on 2-9-1985 at the rates prescribed in
the rescinded notification. It is the contention of the appellants that on both the dates the changes
effected by the Notification on 25-3-1985 and 2-9-1985 were not made known to the Public and hence
the revised notifications cannot be said to be operative on those dates, The appellants procured
confirmation from the Assistant Controller of the Government Press to the effect that in the case of
Notification dated 25-3-1985, the Gazette containing the notifications was made available for public
sale on 15-4-1985, as per their records and in the case of notification dated 2-9-1985, the Gazette was
made available for public sale on 19-9-1985 as per their records. On this basis, it was contended that
the revised enhanced rates would not be applicable in respect of clearances effected on 25-3-1985 and
2-9-1985, because these notifications effecting changes were not published. The appellants however,
did not contest the duty payments effected at the enhanced rates from 26-3-1985 or 3-9-1985 onwards.
It is admitted that there was a radio announcement about the enhanced rates applicable to cigarettes in
the evening news of All India Radio on those dates, and the officers of Central Excise Department have
received the details of the notifications through telex messages only when clearances were effected on
the following days, namely 26-3-1985 and 3-9-1985. Hence they had paid the enhanced rates on and
from those dates and they did not challenge those payments. The lower authorities however, did not
agree with the contention that notifications were not effective on 25-3-1985 or 2-9-1985. The Show
Cause Notices issued for recovery of the differential duty in respect of clearances effected on 26-3-
1985 and 3-9-1985 were confirmed by the Assistant Collector and their appeal before the Collector
(Appeals) was rejected by the Collector (Appeals). Hence the present appeal has come up before the
Tribunal.
3.1 After hearing both the sides, the facts recorded above are not disputed by either side.

3.2 The main tenets of the arguments of the ld. Sr. Advocate on behalf of the appellants can be summed
up as below :

(i) This Bench in the case of Century Enka Ltd. reported in 1994 (69) E.L.T. 44 have considered the
various case laws elaborately and have held the very same issue in favour of the assessees. The main
issue dealt with in that case was whether the notification can be said to have been published on a date
merely because the Gazette bearing that date has been printed on that date. Though the two members
have recorded separate orders, both of them concurred with the proposition that merely because
notification is printed bearing a certain date, it cannot be said to be effective on that date, when there
are evidences to show that the notification was not made available to the Public. Hence going by the
ratio of the said judgment, he would plead for allowing the appeal.

(ii) Referring to Section 5(3) of the General Clauses Act, he points out that as per this section, unless
the contrary is expressed, a Central Act must be construed to come into operation immediately on the
expiry of the day preceding its commencement. However, this provision is not available for
subordinate legislation like Rules and notifications. The time, from which it is effective, is a matter of
proof of its publication. There is no specific provision in the law for giving effect to such notifications
from the expiry of the day preceding the date of printing.

(iii) There is a clear distinction between printing and publishing a notification. In this context, he refers
to the decision in the case of Jayalakshmi Talkies reported in AIR 1982 Andhra Pradesh 174 and 1899
(1-CA) Chancery Division 884 to bring out the distinction between printing and publishing, as has
been laid down in those cases. He would therefore plead that the lower authorities are not correct in
holding that the notification is effective from the date of issue or date of printing, unless it is
simultaneously published. Section 38 of the Central Excise Act also stipulates publishing of the
notification and not mere issue of or printing in the Gazette.

(iv) Referring to the judgment of the Supreme Court in the case of Pankaj Jain Agencies reported in
1994 Supreme Court Cases 198, where the Apex Court held that it is not necessary that it should be
available in Bombay, for being effective, he would plead that even in that case the Supreme Court held
that it is necessary to publish the notification and mere printing cannot be sufficient. The date of
publishing the notification was not in dispute in that case. In that case of Pankaj Jain Agencies,
notification was published on 13-2-1986 and Bill of Entry was filed on 19-2-1986. The contention of
the importer, that the Notification was not available in Bombay, was dismissed by the Supreme Court.
However, in the case of the appellants, though the Gazette bears the dates 25-3-1985 and 2-9-1985,
they were not published till the evening news broadcast by All India Radio on those dates. The
clearances, having been effected in the course of the day, there was no effective publication of these
notifications at the point of clearances and hence in such a situation, the revised rates of duty cannot be
given effect to, in the absence of publication of these notifications. Hence, the facts dealt with in
Pankaj Jain case are distinguishable.

(v) In an identical case decided by the Tribunal in favour of the assessees - Wirex Metal Works v.
Collector of Customs, Bombay, civil appeal filed by the Revenue was rejected by the Supreme Court
(vide C.A. No. 5405-07/90 dated 1-12-1990). Though the merits were not discussed in detail by the
Supreme Court in that order it is a case of rejection of C.A. and hence the reasoning adopted by the
Tribunal has to be construed as having been accepted by the Supreme Court, while dismissing the Civil
Appeal filed by the Revenue.

(vi) The General principles laid down by the Supreme Court that in order to make a notification
effective, it must be published or promulgated as reflected in their various earlier decisions,
particularly in the case of Harla v. State of Rajasthan, have not been dissented even in the case of
Punkaj Jain Agencies. It could not therefore be envisaged that in Pankaj Jain case, the Supreme Court
have taken an opposite view of that, which they held earlier, while dismissing the Civil Appeal filed by
the revenue in the Wirex Metal Works case. He also refers to the decision of the Supreme Court in the
case of D.B. Raju v. H.J. Kantha Raj and Ors. reported in (1990) 4 Supreme Court Cases 178 to point
out that it must be necessary for the subordinate legislation to become effective, it is made known to
the Public .

(vii) In fine , he would urge that notwithstanding the observations of Supreme Court in the Pankaj Jain
Agencies case, the view taken by this Bench in Century Enka continues to hold good. Hence he would
plead for allowing the appeal.

3.3 Shri Krishnamurthy, the ld. J.D.R., on behalf of the Reveune, makes the following submissions:

(i) The case of Century Enka was decided by this Bench, where the contra decision in favour of the
revenue held by the same Bombay High Court in the case of Chemifine and Anr. reported in 1994 (72)
E.L.T. 15 (Bom.) and the judgment of the Supreme Court in the case of Pankaj Jain Agencies case
were not available. In view of the subsequent decision of the Bombay High Court, the Tribunal have
accepted the Reference Application moved by the Revenue in the case of Century Enka, agreeing that
there could be an error in the point of law on the basis of which the issue was held in favour of the
assessee. Now that the Supreme Court also have dismissed the plea that it is necessary for the
Government to make the Notification available in Bombay , so long as it is made known otherwise by
publishing it, it is not relevant to take cognisance of the letters from the Assistant Controller of the
Government Printing Press giving the dates , on which the Gazettes were put on sale for Public.

(ii) It is an admitted fact that on the very date of issue of the notification, there was a radio
announcement about the changes brought about by these notifications. Hence, it has to be construed
that the notifications have been published on those dates by broadcasting over Radio, through issue of
press release. In the context of this admitted position, the date of despatch of the Notification to the
bookstall is not relevant. In the case of Century Enka, the factual position about such publicity having
been given on the date of issue of the notification was not brought out. Hence the case of Century Enka
stands on a different footing, even otherwise, on this crucial factor.

(iii) It cannot be agreed that effect of the notification is to be determined on hourly or minute-wise
basis, pleading that at the time of clearances of the goods, the radio broadcast was not made. Even for
service of notice to individuals, the date only is taken and not the time of service. Moreover, no
evidences are produced in the form of Gate Passes, evidencing the time of removal of the goods from
the factory.

(iv) For the notification to be effective from the following day, the notifications authenticated for issue,
leave the hands of the Ministry on the previous date. The fact that radio announcement is also made on
the dates of those notifications indicates that simultaneously the press relese has also been made in this
case. If there had been a time gap for communication between Delhi and Bombay, that could not be the
ground for challenging the effective date of notification. Such a contention has been rejected by the
Supreme Court in Pankaj Jain case.

(v) The rejection of Civil Appeal filed by Revenue in the case of Wirex Metal Works is one line order
without discussing any reasons, whereas Pankaj fain case decided later discusses the issue on the need
for making the notification available in Bombay, once when it is published. Here the notification has
been published through press release and announced in the Radio. Hence the ratio of the decision in
Pankaj Jain case would stand attracted. Moreover, as per the news item appearing in the E.C.R. vide
1993 (44) ECR page 493, the Supreme Court have admitted the appeals from the Revenue on the very
same issue and granted stay of operation of the High Court's order favouring the assessees. The
Supreme Court would not have granted stay, if they were not prima facie convinced of the case of
revenue on this issue. Hence, rejection of Civil Appeal in the case of Wirex Metal Works, without
assigning any reasons, could be on account of some other reason. He would therefore, plead for
rejection of the appeal based on the ratio of the decision of the Supreme Court in Pankaj Jain case.

4.1 Before considering the pros and cons of the above arguments, I would like to set out the theory of
natural justice applicable in the case of subordinate legislation in general and particularly in the case of
notifications issued in taxation matters. The maxim that ignorance of law does not excuse any subject
represents the working hypothesis, on which the rule of law rests in the country . Rule of law can
prevail only where the contents of law are reasonably made known to the public. No one can be
fastened with a legal liability under the law, if that law is not made public. There should be a
reasonable access to the law by anyone of the citizens. This is the natural justice, which I can envisage
in the case of applicability of subordinate legislation. That is why, the law prescribes publishing of
such rules and notifications in the official Gazette. I also agree that there is a distinction between
printing and publicity. But I cannot subscribe to the view that publicity would only be effective from
the date, when the Gazette reaches the sale counter either at Delhi or in other places. The very same
case laws cited by the ld. Sr. Advocate in this regard support my above view.

In the case of D.B. Raju v. H.J. Kantha Raj and Ors., the Supreme Court observed thus "unlike
parliamentary legislation, which is publicly made, delegated or subordinate legislation is often made
unobtrusively in the Chambers of a Minister, Secretary to the Govt. or other official dignitary and it
was therefore necessary that subordinate legislation, in order 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 then take effect from the date of such publication or promulgation" In that
judgment, the Supreme Court further observes "The mode of publication can vary but there must be
reasonable publication of some sort". Going by these observations of the Supreme Court, I find that my
observations in the case of Century Enka decided earlier follow the same principle as laid down by the
Supreme Court in the case of D.B. Raju v. Kantha Raj. In the case of Jayalakshmi Talkies- AIR 1982
A.P. 174 the Andhra Pradesh High Court, while considering the provisions of Section 4A of the
Andhra Pradesh Entertainment Tax Act observed thus "Where exactly it is made known to the Public
or published will differ according to different circumstances. Where it is stated "publication" it is
accomplished in a variety of ways according to the subject matter." From this judgment, it is clear that
the act of publishing cannot be effective only by making copies of the Gazette notification available at
the sale counter. It is one method of making the Gazette available to the public. The Supreme Court in
the case of D.B. Raju have set out that the subordinate legislation must be published or promulgated in
some suitable manner, which is my view could encompass all media of audio/visual publicity through
news papers, Radio/ TV coverage. Hence, I am of the view that depending on the nature of the
subordinate legislation "the mode of publication can vary - but there must be reasonable publication of
some sort."

4.2 Now coming to the exemption notification issued under the Customs and Central Excise laws, I
find that the Parliament, having fixed the statutory rates of duty by passing the Finance Bills every
year, have entered the powers to the Central Government to grant exemptions in the public interest,
enabling the Government to fix the effective rates either unconditionally or subject to such conditions
as may be necessary. The legal requirement is that they must be published in the official Gazette. In the
field of indirect taxation, even the changes brought out in the Statutory rates every year through
Finance Bills are not announced in advance, but are kept a closely guarded secret for obvious reasons
of preventing hoarding of speculative profits. The provisions of the Finance Bill enhancing the
statutory rates of duty are given immediate effect by a declaration made invoking the Provisional
Collection of Taxes Act. Hence, based on the same reasoning, any changes brought about in the
effective rates of duty through notifications issued by the Government, in public interest, cannot be
revealed in advance and have to be notified, effective from the date following the date of the decision
of the Minister, after due authentication by the designated authority in the Finance Ministry. Hence,
invariably in regard to such notification, for publishing it, they can be sent to the Govt. of India press
and to the Law Journals as well as to the press in the form of press release, only on the closing of the
day immediately preceding the effective date. In such a circumstance, in my view, following the
principles laid down by the Supreme Court in the case of D.B. Raju, publishing the notification
through accepted media of publicity will meet the requirement. It is not the case of the appellant that
the notification was not printed in the Gazette nor its case is that Gazette was not sold to the Public.
Their only grievance is that the Gazette was put on sale to the public at a later date. This objection
would have been valid, only where there is no evidence to show that the said Notification was not
available to Public through any other media of publicity. In the case of Century Enka, I have expressed
this view but concurred with my ld. brother Shri Desai, only because in that case, there was no
evidence to the contrary to suggest that the notification was publicised through any other media of
publicity or it was announced in the Parliament, making the public aware of the issue of the
notification.

5.1 Let me consider this case of the appellant in the above context, having regard to the undisputed
factual position. It is an admitted fact that in the case of both the notifications issued on 25-3-1985 and
on 2-9-1985, there was a radio announcement about the changes brought about in these notifications in
the evening news on those very same dates. This would suggest that the press release has gone out
from the Ministry of Finance simultaneously with the release of the authenticated copies of
Notification to the Government press for publication. Hence, this is a reasonable publication of some
sort and the notification can be said to have been published in suitable manner on that date. Going by
the principle laid down in the case of D.B. Raju, decision to grant the exemption made in an
unobtrusive manner in the Chambers of the Finance Ministry, can be said to have been published by
issuing a press release for audio/ visual publicity, simultaneously with the release of the authenticated
copy of the Notification to the Govt. press for publication. Hence, I would find that in the case of the
present appellants, the facts go to indicate that the notifications in question were published on the dates
bearing the dates in the Gazette Notification.

5.2 But the ld. Sr. Counsel pleads that news broadcast was only in the evening and clearances had
taken place before the evening news. Hence, he pleads that the Notifications were not published at the
time of clearances of the goods. I am not persuaded to accept this line of argument. In the case of
parliamentary enactments, the General Clauses Act prescribes the effective date for statutory
enactment. Even if I accept that the General Clauses Act may not be available for subordinate
legislation, if it is established that the issue of Notification is publicised in a suitable manner effective
from that date, it will apply to the whole day and not to be made effective on hour to hour basis,
depending on the timing of Radio news broadcast or the news item appearing in the morning editions
of papers or in eveninger or in Midday dailies. One of the canons of taxation is certainty. If I accept the
proposition made by the ld. Sr. Counsel, I may have to subscribe to the adoption of multiplicity of rates
of duty for the same goods cleared in the course of the same day, when the Government's intention is to
subject the goods to enhanced rates from a particular date is already publicised in a suitable manner on
that date itself. I also find support for this view taken by me from the decision taken by the Tribunal in
the case of Ganware Nylon v. Collector of Customs reported in 1992 (59) E.L.T. 647 (Tri.), wherein it
has been held that if the assessee knows about the notification, it is not relevant to go into the date of
issue of the Gazette for sale. I also would like to point out that if the rates have been reduced through
notification, the benefit cannot be denied to part of the clearance effected on the same day, because the
issue of notification was not known through news broadcast till the evening.

5.4 With these discussions, let me now proceed to consider the other arguments of the ld. Sr. Counsel.
His plea is that the decision taken by this Bench in the case of Century Enka would be applicable in
this case. As already discussed, the admitted fact in this case is different from the case of Century
Enka. In this case, there is an admission that there was news broadcast on the same day about the
changes brought about in the notification, whereas in the case of Century Enka, no such evidence was
forthcoming . My Ld. Brother Shri Desai, mainly relying on the decision by the Bombay High Court in
G.T.C Industries v. Union of India - 1988 (33) E.L.T. 83 (Bom.) and Swati Chemicals v. Collector of
Customs - 1990 (50) E.L.T. 342 (Bom.) which held that mere printing of the notification does not make
it effective but for making effective it must be made available to the public, allowed the appeal in
favour of the assessee. He also relied on the decision of the Supreme Court in East India Commercial
Co. -1983 (13) E.L.T. 1342 (SC), for applying the above two decisions of the Bombay High Court,
since the issue has arisen in the jurisdiction of superintendence of the High Court of Bombay. All the
same, both of us have agreed to allow the Reference Application moved by the Revenue against the
above decision. It was brought to our notice that Bombay High Court in a subsequent case of
Chemifine v. Union of India - 1994 (72) E.L.T. 15 (Bom.) have dissented from the earlier view taken
by them in the case of Swati Chemicals and also from the view taken by the Madras High Court in
Asia Tobacco - 1984 (18) E.L.T. 152 (Mad.). This judgment was not available before us at the time of
passing the order in the case of Century Enka. Hence, we felt that there is definitely a point of law
involved and allowed the reference made by the Revenue. Though in the aforesaid order of Century
Enka separate orders were recorded by us setting out our views on the issue, we are now unanimous
that the point of law is still not settled and would call for a reference. It was however pleaded by the ld.
Sr. Counsel that even if a reference application is allowed, the ratio of the decision would be
applicable, till the High Court decides on the reference to the contrary. However, in the case of Century
Enka, though I agreed to allowing the appeal, it was only due to the fact that there was no evidence to
rebut the contention that the notification was not made public, till it was put on sale by the Govt. press.
Here when the admitted position is that it was announced in the Radio on the same date, going by the
principles laid down by the Supreme Court in D.B. Raju v. Kantha Raj, I am to hold that notification,
having been published on the same date is effective irrespective of the date of availability of the
Gazette for sale at the counter on a subsequent date. I am therefore not persuaded to accept that the
decision in the case of Century Enka can be applied by me in this case.

5.5 Though I agree with the ld. Sr. Advocate that the provisions of Section 5(3) of the General Clauses
Act may relate to parliamentary enactments and may not be available to subordinatele legislation, it
cannot be agreed that the effect of the Notification is to be determined on hour to hour basis, depending
on the timing of news broadcast or whether it appears in morning dailies or in the Midday/eveningers -
I have already set out my views on this proposition elsewhere in the order. Unless otherwise stated in
the notification it is effective from the date of publishing the Gazette.

5.6 I agree with the ld. Sr. Counsel that there is a distinction between printing and publishing. But
publishing in this case cannot be confined only to mean the date of sending the Gazette to the sale
counter. Publishing, as observed by the Supreme Court, could be through a suitable manner by which
the Public can come to know of the contents of the subordinate legislation. I have discussed on this
aspect elsewhere. In the present case, I observe that simultaneously with the release of the notification
for Gazetting the decision taken in the Chamber of the Finance Minister, it has also been publicised
through other media on the same date of notification. Hence, the date of sale of Gazette is not relevant
for consideration.

5.7 The above view of mine is also strengthened now by the Supreme Court in the case of Pankaj Jain
case -1994 (72) E.L.T. 805 (SC). This decision was also not available before us, when we decided the
case of Century Enka. In the case of Pankaj Jain, the Supreme Court after considering their decisions in
Harla v. State of Rajasthan and also the case of State of Maharashtra v. Mayor Hans George rejected
the contention that notification should be made available to the Public at Bombay, when it is
promulgated and published in an acceptable manner . In the present case before us, I find that their
contention is that during the day, when clearances were effected, there was no news broadcast of All
India Radio. Only in the evening news, it was broadcast. There in no contention raised before us that it
was not released to the press in Delhi. The fact that it was broadcast on the same day of notification,
indicates that press release has been simultaneous, making the provisions of the notification public. If it
did not reach Bombay due to some communication gap or on account of priority in News reporting, it
cannot be held that notification was not made public nor can it be accepted that the Notification was
kept wrapped up in the Chamber of the Minister or his official without making it public. The case of
Pankaj Jain decided by the Supreme Court seems to negative the principle laid down in Asia Tobacco
and G.T.C. Industries that only date of release for sale of Gazette is relevant.

5.8 I also note from the submissions made by the ld. J.D.R. that the Supreme Court, notwithstanding
the rejection of the Civil Appeal filed by the Revenue in Wirex Metal Works case, have subsequently
admitted appeals from the Revenue and granted stay against operation of the order of the High Court.
Hence, viewed in this context, their decision on marits in the case of Pankaj Jain case acquires
considerable significance. Hence, in view of this latest judgment of the Apex Court, which is
applicable to this case because of the admitted position of publicising the notification through news
broadcast in A.I.R. on the same date, I would respectfully follow the said decision and reject the
appeal.

6. Before parting with this order, I am to sum up that the Apex Court, in the Pankaj Jain Agency case,
by rejecting the contention that the notification to be effective must be available in Bombay, has been
consistent with their approach in their earlier decision in D.B. Raju's case. So long as the notification is
publicised in any acceptable manner and the contents made known to the public, it is effective from
that date. This is what is evident from Pankaj Jain case. This appears to negative the view of the
Madras High Court in Asia Tobacco case, and that of the Bombay High Court in Golden Tobacco case,
holding that notification can be said to be effective only from the date on which copies of the Gazette
were put on sale to the public. With all due regards to aforesaid decision of the High Court, I am to
observe that such a proposition would lead to a piquant situation, where the Government proposes the
law to be effective from a particular date, but the Controller of to the Govt. Press could propose
another date. It is like saying that while God proposes, man disposes and not otherwise, which is the
proverbial saying. So long as the Govt. gives publicity to the notification by acceptable media of
publicity by press release simultaneously with the issue of notification for printing in the official
Gazette, the notification is published on that date. The Apex Court in Pankaj Jain case seems to have
gone by this principle in rejecting the contention that notification should be made available in Bombay.
In this case before us, when such a publicity has been given as is evident from the news broadcast on
the same date of issue of the notification, notification is to be deemed as published on that date. There
is no need for waiting for the sweet will of the Controller of Press to send the copies of the Gazette to
bookstalls in Delhi/Bombay or the other places.

7. In the result, the appeal is dismissed.

Sd./-

(R. Jayaraman)

Dated 9-11-1994 Member (T)

P.K. Desai, Member (J)

8. I have the privilege of going through the reasonings adopted, observations made, th
conclusions drawn and the order proposed by my learned brother Mr. R. Jayaraman.

9. With the factual position not under any dispute, the short issue, though with larger magnitude and
significant importance, that has come up for determination, is, when can the notification issued under
the powers vested in the Government under Rule 8 of the Central Excise Rules (since repealed on
introduction of Section 5A in the Central Excises and Salt Act, 1944 containing identical provisions),
be taken to have been implemented. Whether on and from the date it bears or on and from the date the
Gazette in which the same is published bears or on and from the date the Gazette is put on the stand
and made available to the public. An ancillary point that crops up is whether, any other mode of
announcement made, would be sufficient compliance with the statutorily contemplated publication. For
the purpose of present appeal however, the ancillary question may not be of much significance, as the
appellants have already paid the duty at the revised rates, after an announcement was made on the All
India Radio, and it is stated at the bar that, there is no intention of the appellant to claim any refund
thereof on the technical pleas raised here.

10. It hardly requires to be mentioned that there are two sources from which the law is derived, one,
the legislative enactment and second is judicial pronouncements, fact that the order referred to is not
correct or is not in conformity with the legal provisions. It only indicates that there is a possibility that
the legal aspect considered may be construed in a way different from the one as considered by the
Tribunal and the said aspect should be examined by a judicial forum recognised as giving authoritative
verdict, not challengeable except in the mode and manner if any, provided. At this stage, therefore, it
cannot be held that the finding given by the Tribunal in Re: Century Enka is not the correct
interpretation.

11. In ordinary circumstances, it would suffice, to decide the present appeal, to refer to our view in Re :
Century Enka (supra). The necessity for re-examination has however arisen because of the Supreme
Court judgment in Pankaj Jain Agencies v. Union of India, 1994 (72) E.L.T. 805 (SC) as also the
judgment of Bombay High Court in Chemifine and Anr. v. Union of India (supra), which has been
published and brought to our notice, subsequent to our order in Re : Century Enka (supra).

12. I am conscious of the fact that in interpreting the statutory provisions particularly when they affect
the economy of the nation, a pragmatic view ought to be taken with an effort to bring out and
implement the real object of the legislation, but being a quasi-judicial forum, one cannot ignore or
overlook an issue which happens to have been decided by various judicial forums in the form of a case
law. One cannot be guided away by the consequences therefore, as the remedy to overcome the same
lies elsewhere.

13. The authority of the Government to enact a law, or to issue a notification with retrospective effect,
or by laying down specific date, for implementation, or to bring the same conventionally known as the
case law and neither of them could be ignored or overlooked or discarded. The case law, which
generally comes by way of interpretation of the statutory law, if and when the same is ambiguous or is
capable of more than one interpretation, and such a case law would hold good, till the same is altered
by due process provided therefor.

14. An issue similar to the one here, had come up before this Bench in Century Enka v. Collector of
Customs, 1994 (69) E.L.T. 44 where both of us concurred on the final order, but held slightly different
views which have been duly expressed in the said order itself and which has been duly referred to by
brother Jayaraman in the order as proposed by him. My view was that with the words "by notification
in the official Gazette" used in Section 25 of the Customs Act, 1962 [the provisions of Rule 8 of the
Central Excise Rules, 1944 (since repealed) and Section 5A of the Central Excises and Salt Act, 1944,
are identical] the mode of publication was statutorily prescribed and the same had to be adhered to, and
with plethora of judgments from judicial forum and orders from the quasi-judicial forums, extensively
discussed therein, the publication of a notification can be deemed to have been effected when the
Gazette publishing such a notification was put on the stand for sale. It is true that, against the same
finding, an application invoking the provisions of Section 130 of the Customs Act, was made seeking
reference thereon, to the High Court, and the application has been allowed and the matter is referred to
the Bombay High Court. By that time, the judgment of Bombay High Court in Chemifine and Anr. v.
Union of India, 1994 (72) E.L.T. 15 (Bom.) was also available. It may however be clarified that by
ordering a reference to the High Cuort, under the provisions of Sec 130 of the Customs Act, 1962 (or
under allied provisions under other Acts) is not indicative of the into effect, immedi-atly by making a
specific averment in that regard, has never been doubted.

15. Be it mentioned here, to maintain the link, that neither of the notifications which are subject matter
here, mentions the specific date for its implementation, and as a result thereof, the date of their
implementation is to be determined on due interpretation of the provisions of Rule 8 (since brought in
as Section 5A of the Act).

16. The Division Bench of the Bombay High Court, had, in Union of India v. G.T.C. Industries Ltd.
-1991 (56) E.L.T. 733 (Bom.) before them the issue of printing of a Notification, issued pursuant to the
powers vested vide Section 38 of the Central Excises and Salt Act, in the official gazette and the
publication of the said gazette, for the purpose of ascertaining the date of implementation of the said
Notification, and they have held that, for the purpose of implementation, the date on which the Gazette
was made available to the public was the material date. Support to their view was taken from the
judgments from the Supreme Court in Harla v. State of Rajasthan - AIR 1951 Supreme Court 467;
B.K. Srinivasan v. State of Karnataka - AIR 1987 Supreme Court 1059 : 1987 (1) SCC 658 and D.B.
Raju v. H.J. Kantharaj, 1990 (4) Supreme Court Cases 178, Single Judge of the same High Court in
Swati Chemicals v. Collector of Customs, 1990 (50) E.L.T. 342 (Bom.), while dealing with a
notification issued vide Rule 8(1) of the Rules, also took the similar view. The same view is also held
by Division Bench of Madras High Court in Union of India v. Asia Tobacco Co. Ltd., 1990 (50) E.L.T.
29 (Mad.). Series of orderes passed by various Benches of this Tribunal also, take the same view.

17. In the judgments referred to above, as also in the subsequent judgments of the Supreme Court in Re
: Pankaj Jain Agencies (supra) and of Bombay High Court in Re : Chemifine and Anr. (supra) it has
been an accepted proposition that for the purpose of implementing any notification, publication thereof
is essential. It may also be noted that in none of the aforequoted decisions relied upon in our order in
Re : Century Enka (supra), the issue as to whether publication by any other recognised mode could
suffice, has been considered.

18. Though the appellants here have categorically stated that they have acted on the announcement
made in the All India Radio, and it is not their intention to claim any refund of duty paid for the period
when the Gazette containing the said notification was placed on the stand, the principal contention
raised by them is whether the date of pbulication of the Gazette should be the material date.

19. What therefore requires to be considered is whether, the Supreme Court have in Re : Pankaj Jain
Agencies (supra) and the Bombay High Court have in Chemifine and Anr. (also supra) given a positive
case law, overruling differentiating or distinguishing the earlier view, and have provided authentication
to the plea that the view held earlier and followed by us in Re : Century Enka (supra), has ceased to be
the correct law.

20. The Bombay High Court have, in Re : Chemifine (supra) virtually disagreed with the view
expressed by the single judge in Re : Swati Chemicals (supra) but have not referred to the other
decision namely, Union of India v. G.T.C. Industries (also supra) which is the decision of a Division
Bench. With the decisions in Re : Chemifine and in Re : G.T.C. Industries coming from the Division
Benches of the same High Court having concurrent powers, it cannot be held that effect of the
subsequent decision in Re: Chemifine is to overrule the earlier decision in Re : G.T.C. Industries. The
result is that there are two decisions of two Division Benches of the same High Court, which do not
hold the identical views. It is not possible to describe them as holding divergent views for a simple
reason that even in Re : Chemifine the High Court approves the need to publish in the official Gazette
and in the said judgment also, there is no clear finding that publication of a notification by any other
mode and manner or through a media, is sufficient to make the notification operative, and publication
in the official Gazette is merely a statutory formality which may occur at any subsequent date. To put it
otherway, it does not clearly dislodge the ratio of the judgment in Re : G.T.C. Industries.

21. The judgment of the Supreme Court in Re: Pankaj Jain Agencies also, in my humble opinion, does
not provide a full answer to draw the conclusion that my learned brother has drawn. Considering the
facts as are reflected from the said judgment, it is not clear as to whether the objection was restricted to
non-availability of the Gazette containing the notification in Bombay only, or was the plea raised that
the same was available nowhere. To put it otherway, whether the facts before them were that the
Gazette was already published and made available to the public elsewhere, but was not available in
Bombay. If that was so, then obviously the objection was not sustainable even within the periphery of
the earlier decisions, and the said judgment has not deviated from the earlier stand. Further, their
Lordships have referred to, with approval, the earlier judgments in Harla v. State of Rajasthan (supra)
and B.K. Srinivasan v. State of Karnataka (also supra). In Harla v. State of Rajasthan, the said Court
have inter alia, held:

"Natural justice requires that before a law can become operative, it must be promulgated or published.
It must be broadcast in some recognised 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 exercise of due and reasonable deligence."

In B.K. Srinivasan v. State of Karnataka (supra), the concluding observation is :

"It is therefore necessary that subordinate legislation, in order 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."

With the observation of the Supreme Court in the aforesaid two judgments that publication and making
the same known to the public is essential and the notification could take effect from the date of
publication and promulgation, and an indication in the judgment in Re: B.K. Srinivasan, that mode of
publication ought to be provided in the parent statute, the issue causing some disturbance, and calling
for appropriate finalisation is whether by virtue of incorporating the words "by publication in official
Gazette" used in Rule 8 of the Central Excise Rules, 1944 (since repealed), Section 5A of the Central
Excises and Salt Act, 1944, and Section 25 of the Customs Act, 1962, a statutory mode of publication
is provided, making the notification effective only on and from the date the same is so "published",
namely when the Gazette is brought to the stand and made available to public or that the publication in
the official Gazette is merely a statutory formality not directly affecting the date of the implementation
of the notification, and it could suffice if the notification is published or promulgated by any other
available mode of publication. If the latter proposition is to be accepted, then the use of the words "by
notification in the official Gazette" may probably appear redundant as requirement of publication in the
official Gazette is already laid down in Section 38 of the Central Excises and Salt Act, 1944 and
Section 155 of Customs Act, 1962. In my humble opinion, the reply to the issue is not available from
the judgment of the Supreme Court in Re : Punkaj Jain Agency. There is no clear finding or even a
mention in the said judgment that the notification under question was promulgated by any of the
alternative modes of publication.

22. With the view of Bombay High Court in Union of India v. GTC Industries, 1991 (56) E.L.T. 733
(Bom.) not getting overruled by the decision of the same High Court in Chemifine v. Union of India,
1994 (72) E.L.T. 15 (Bom.), and with Madras High Court decision in Union of India v. Asia Tobacco
Co. Ltd., 1990 (50) E.L.T. 29 (Mad.) which though the Bombay High Court have in Re : Chemifine
preferred not to follow, but all the same, remains a case law, holding the view that the date of
implementing the notification issued under the subordinate legislation could only be the date when the
Gazette is published or brought to the stand, and with the Supreme Court judgment in Re : Pankaj Jain
Agencies, dealing with neither of them, and even otherwise not providing any finding on the issues
poised hereinabove, coupled with series of decisions from various Special and Regional Benches of the
Tribunal taking a view that the date on which the Gazette containing the notification is published, is the
date from which the notification becomes effective, it is not possible for me to prima facie conclude
that my view in Re: Century Enka (supra) has to be discarded as de hors the ratio of the Supreme Court
in Re: Pankaj Jain Agencies.

23. The approach adopted by brother Jayaram, may be on account of practical aspects, but in view of
the statutory provisions, for which the probable interpretations as given hereinabove, and which gets
supported by several judgments from various High Courts and majority of the Benches of the Tribunal,
and which cannot be discarded except for cogent reasons, it is not possible to endorse the same.
Actually a reference to the Supreme Court alone can provide a correct solution, but such an order at
this stage being not within our powers, I hold that the Larger Bench should examine the issue for
appropriate determination.

24. Alternate submission of Mr. Nariman, that even assuming that publication by alternate media is due
publication, such a publication was only late in the evening, and notification is deemed to have been
implemented from that hour alone, and could not affect the transactions carried out prior to that, also
cannot be discarded as without substance. However, when I am of the view that the entire aspect
should be examined by the Larger Bench, I deem it unnecessary to give any specific finding thereon,
particularly, if the Larger Bench endorses my view, the issue may not survive.

25. In the result, regretting my inability to endorse to all the views and also the conclusion drawn by
brother Jayaraman, I hold that the entire issue be referred to the Larger Bench and President be
requested accordingly.

Sd./-

(P.K. Desai)

Dated : 23-11-1994 Member (J)

26. In view of the difference of opinion between the two Members, the President b
requested to refer to the third Member, the following issue :

Whether the matter deserves to be referred to the Larger Bench as ordered by the Membe
(Judicial) or that the appeal deserves dismissal on the grounds mentioned by the Membe
(Technical).