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Asia Tobacco Company Ltd. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberWrit Petition Nos. 6048 to 6050 of 1984
Judge
Reported in(1985)45CTR(Mad)306; 1985(5)ECC53; 1985(5)LC1637(Madras); 1984(18)ELT152(Mad); [1985]155ITR568(Mad)
ActsCompanies Act, 1956; Central Excises Rules, 1944 - Rule 8(1); Central Excises Act, 1944 - Sections 11B; Additional Duties of Excise (Goods of Special Importance) Act, 1957 - Sections 3(3); Foreign Exchange Regulation Act, 1947 - Sections 8(1); Andhra Pradesh General Sales Tax Act, 1957 - Sections 9; Madhya Pradesh Prathamik Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, 1973 - Sections 3; Constitution of India - Article 226; Defence of the Realm Regulations
AppellantAsia Tobacco Company Ltd.
RespondentUnion of India and ors.
Appellant AdvocateR. Sasidaran, Adv.
Respondent AdvocateC. Krishnan, Adv.
Cases ReferredIn Yemmiganur Spinning Mills Ltd. v. State of
Excerpt:
legislative powers - delegated legislation--date of coming into effect of notification--grant of exemption to manufacturers of cigarettes--withdrawal of exemption by notification dated 30th november, 1982--sale of gazette containing notification to public on 8th december, 1982--notification comes into effect only on date when public sale is made of gazette--petitioner clearing cigarettes up to 5th december, 1982 based on exemption notification--letter dated 6th december, 1982 from authorities informing petitioner of withdrawal of exemption and demanding differential duty from 30th november, 1982--illegal--petitioner not aware of withdrawal of exemption--payment of differential duty under protest by petitioner--payment under mistake--petitioner entitled to refund of differential.....nainar sundaram, j.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, dharmapuri district. the petitioner claims that it manufactures cigarettes for itself and for m/s. itc limited. cigarettes 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 no. 30/79 of central excise, dated march 1, 1979, hereinafter referred to as the exemption notification and the said notification, with its amendments by notifications nos. 140/79 c.e. dated march 30, 1979 and 25/81 c.e. dated march 1, 1981, issued under sub-r. (1) of r. 8 of the central excise rules,.....
Judgment:

Nainar Sundaram, J.

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, Dharmapuri District. The petitioner claims that it manufactures cigarettes for itself and for M/s. ITC Limited. Cigarettes 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 No. 30/79 of Central Excise, dated March 1, 1979, hereinafter referred to as the exemption notification and the said notification, with its amendments by notifications Nos. 140/79 C.E. dated March 30, 1979 and 25/81 C.E. dated March 1, 1981, issued under sub-r. (1) of r. 8 of the Central Excise Rules, 1944, hereinafter referred to as the 'Rules', reads as follows :

'Partial exemption to cigarettes. -In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excises Rules, 1944, read with subsection (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) (hereinafter referred to as the 'Addition 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 Excises Act'), from so much of the duty of excise leviable thereon both under the Central Excises Act and the Additional Duties of Excise Act, as is in excess of the duty specified in the corresponding entry in column (2) thereof.

TABLEDescription Rate of dutyCigarettes of which the value perone thousand -(i) does not exceed rupees tenOne hundred and fifty per cent. ad valorem plus twenty-one rupees and fifty paise per one thousand(ii) exceeds rupees ten but doesnot exceed rupees thirty-five One hundred and fifty per cent.ad valorem plus ten per cent.ad valorem for every additionalrupee or part thereof in excessof a value of rupees ten per onethousand, plus twenty-one rupeesand twenty-five paise per onethousand.(iii) exceeds rupees thirty-fiveFour hundred per cent. ad valorem plus twenty-one rupeesand twenty-five paise per onethousand. 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 Excises Act and the Additional Duties of Excise Act, respectively.

(Notification No. 30/79-CE dated March 1, 1979, as amended by Notification No. 140/79-CE dated March 30, 1979 and No. 25/81-CE dated March 1, 1981).'

2. 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. ITC Limited at the rates specified in the Exemption Notification, depending on the assessable value. The Central Government, by Notification No. 284/82-CE dated November 30, 1982, hereinafter referred to as the 'Withdrawal Notification' rescinded the exemption Notification pursuant to the powers under sub-r. (1) of r. 8 of the Rules. The Withdrawal Notification reads as follows :

'MINISTRY OF FINANCE (Department of Revenue) New Delhi, the 30 November, 1982.

NOTIFICATION No. 284/82-Central Excises.

G.S.R. 728(g). - In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excises 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 March 1, 1979.

(F. No. 349/2/82-TRU) J. K. Batra, Under Secy.'

On December 6, 1962, 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, Sipcot Industrial Complex, Hosur. Gentlemen, Subject : Central Excise-Cigarettes-Issue of Notification No. 284/82-C.Ex. dated November 30, 1982-Differential duty on the cigarettes cleared with effect from November 30, 1982-Demands issued-Regarding.

You are hereby informed that Notification No. 30/79 dated March 1, 1979, prescribing concessional rate of duty for cigarettes has been rescinded by Notification No. 284/82-C.Ex. dated November 30, 1982. Consequently, the clearances of cigarettes effected from November 30, 1982, based on the assessable value claimed in your price list dated November 12, 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 Assistent Collector on the above price list filed by you. So far, with effect from November 30, 1982, to December 5, 1982, you have cleared 62064 thousands of scissors brand cigarettes. So you are hereby requested to pay the differential duty as furnished below for the above quantity of cigarettes cleared by you in the above period.

B.E.D. A.E.D. S.E.D. TotalRs. Rs. Rs. Rs.5,81,850 3,64,626 58,185 10,04,661 You are hereby requested to pay the above differential duty immediately and produce the paid challan.

Yours faithfully,

(Sd.).......

Superintendent of Central Excise, Hosur III Range, Hosur.'

3. The petitioner, by its reply dated December 10, 1982, the contents of which run as follows, expressed surprise with regard to the Withdrawal Notification and pleaded 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,

Hosur Range III, Hosur.

Dear Sir,

We are in receipt of your demand notice O.C. No. 1554/82 dated December 6, 1982 on December 7, 1982. We are surprised to note that the Notification No. 284/82 C. Ex. dated November 30, 1982, have been brought to our notice on November 7, 1982, demanding with retrospective effect the differential duty on clearance from November 30, 1982. In fact we have not been handed over a copy of the Notification No. 284/82-C. Ex. dated November 30, 1982, to enable us to pay the duty as demanded by you.

However, we are paying Rs. 10,04,661 without prejudice 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.'

4. On April 23, 1983, M/s. ITC Limited, for whom the petitioner manufactures cigarettes, addressed a letter to the Controller of Publications, Publication Department of Government of India, Delhi-110 054, requesting information and the actual date when the Gazette containing the Withdrawal Notification was made available to the public. That letter reads as follows :

23rd April, 1983 'LEG/381 Controller of Publications, Publication Department of Government of India, Old Secretariat, Civil Lines, Delhi-110054.

Dear Sir,

Gazette of India

As far as we are aware, the Gazette copy of the Notification No. 284/82-Central Excise dated November 30, 1982, rescinding the Notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 30/79-Central Excise dated March 1, 1979 was not made available to the public until some in the first week of December, 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 April 23, 1983, a reply was received from the Assistant Controller (Periodicls) for Controller of Publications, and the said reply runs as follows :

'GOVERNMENT OF INDIA

Department of Publication,

Civil Lines, Delhi- 11054.

23rd April, 1983

No. Gaz/81-179/83

To

Accountant,

I.T.C. Limited,

Virginia House,

37, Chowringhee,

Calcutta.

Dear Sir,

With reference to your letter No. LEG/381 dated April 23, 1983, regarding the date of availability for the public of the Gazette of India Exty., pt. II. Section III, sub-s. (I) dated 30, 1982, No. GSR Notification. No. 284/82-Central Excile. In this conection, I write to inform you that the said Gazette of India was placed on sale for public on December 8, 1982.

Yours faithfully,

Sd.

Assistant Controller (Periodicals)

for Controller of Publication.'

On May 9, 1983, the petitioner wrote to the second respondent pointing out that the Withdrawal Notification was placed on sale for public only on December 8, 1982, and, therefore, the effect of the Withdrawal Notification would be only from December 8, 1982, and wanted that while working the differential duty for the period from November 30, 1982, to December 7, 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 IDO, Bagalur Road, Hosur-635 109.

Dear Sir,

Sub : Notification No. 284/82 issued by the Government of India.

The Notification No. 30/79 dated March 1, 1979, was rescinded by Notification No. 284/82 dated November 30, 1982. We are advised that this notification will come into effect 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 the Asst. Controller (Periodicals) for Controller of Publications, Governmnet of India, Departmnet of Publications, New Delhi, dated April 23, 1983, stating that the above notification was placed on sale for public on December 8, 1982. Therefore, the effect of the Notification No. 284/82 could be made applicable only from this date. In this connection, we also place our reliance on the following judgments :

(1) Yemmiganur Spg. Mills Ltd. v. State of AP [1976] 37 STC 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 simiilar : case reported in Harla v. State of Rajasthan : [1952]1SCR110 , ITO v. Ponnoose : [1970]75ITR174(SC) and Narayana Reddy v. State of AP [1975] 35 STC 319 on similar matters.

Hence, we request you that, in view of what has been stated above, while working the differential duty payable for the period November 30, 1982, to December 7, 1982, the same should be calculated taking into consideration the date applicable as per the earlier notification, viz., No. 30/79 of March 1, 1979.

Thanking you,

Yours faithfully,

for ASIA TOBACCO CO. LIMITED

Sd.

K. S. Murthy,

Factory Manager.'

The second respondent replied on September 19, 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 19th September, 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.

Gentleman,

Sub : CE - Cigarettes - Issue of Notification No. 284/82 dated

November 30, 1982, rescinding Notification No. 30/79 dated March

1, 1979 - Effect of the Notification - Your representation regarding.

Ref : Your letter No. Ex/280/1323/KSM dated May 9, 1983.

Your representation regarding the implementation of the tariff rate of duty on cigarettes as per the Notification No. 284/82-CE dated November, 30, 1982, will take effect only from December 8, 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. 214/82 has been mentioned as November 30, 1982.

Hence, the Notification No. 284/82 will take effect from November 30, 1982, itself.

You are, therefore, informed that while calculating the differential duty for the period from November 30, 1982, to December 7, 1982, it should be worked out on the basis of the tariff rate of duty prescribed in the Notification No. 284/82-CE dated November 30, 1982.

Yours faithfully,

Sd.

(B. V. Bhatt.)

Assistant Collector.'

The petitioner would persist that the Withdrawal Notification could be effective only from December 8, 1982, and it wrote back on November 15, 1983, to the second respondent as follows :

'ASIA TOBACCO COMPANY LIMITED.Ex/450/306November 15, 1983The Assistant Collector of Central Excise,Hosur I.D.O.,Bagalur Road,Hosur-635 109. Dear Sir,

We refer to the correspondence on the subject resting with your letter C.No. V/4/30/103/82-T3 dated September 19, 1983, and send you photo copies of the cases reported in Yemmiganur Spg. Mills v. State of AP [1976] 37 STC 314 and Narayana Reddy v. State of AP [1975] 35 STC 319, respectively, from which all the relevant facts and circumstances under which the said judgments of the honourable High Courts 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 published in the Gazette of India bearing back dates as indeed it happened in the case of the rescinding Notification No. 284/82-CE dated November 30, 1982, which was in fact placed on sale for public on December 8, 1982 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 to the public.

You will also no doubt (agree) that in view of the above judgment and in the facts of our case, the rescinding Notification No. 214/82-CE dated November 30, 1982, can only be made effective with four December 8, 1982, the date on which the Gazette in question was in fact placed on sale for public as stated in the letter No. GAZ/Ex. 1179/83 dated April 23, 1983, from the Controller of Publications, Governmnet of India, Department of Publications, 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 November 30, 1982, to December 7, 1982, taking into consideration the rate applicable as per the earlier Notification No. 30/79 of March 1, 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 November 30, 1982, to December 7, 1982, should be calculated only taking note of the Withdrawal Notification and he wrote a letter to this effect to the petitioner on February 22, 1984, as follows :

'Office of the Assistant Collector of Central Excise,Hosur Division, Hosur-635 109C.No. V/4/30/103/82-T3 22nd February, 1984FromThe Assistant Collector of Central Excise,Hosur Dvn.To

M/s. Asia Tobacco Co. Ltd.,

No. 35, Rajaji Nagar,

Hosur-635 126.

Gentlemen,

Sub : CE - Issue of Notification No. 284/82-CE dated

November 30, 1982- Effective date for

Notification - Regarding.

Ref : Your letter No. Ex/450/306 dated November 15,

1983.

Your representation that the effective date of the Notification No. 284/82-CE, dated November 30, 1982, implementing the Tarriff rate of duty on cigarettes takes effect only from December 8, 1982, is not entertained by the Collector of Central Excise, Coimbatore, as he observes that the effective date of the said notification is operative only from November 30, 1982, and not December 8, 1982, as claimed by you.

Hence, the differential duty for the period from November 30, 1982, to December 7, 1982, should be calculated only at the rates prescribed in the Notification No. 284/82-CE dated November 30, 1982.

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 November 30, 1982, to December 7, 1982, is only at the revised rates prescribed in the Notification No. 284/82-CE dated November 30, 1982.

The action taken in this regard may please be sent to this office immediately as the Collector desires to know of the same.'

The third respondent, on March 9, 1984, addressed the following letter to the petitioner :

office of the Superintendent of Central Excise, Hosur IV Range

OC. No. 157/84 Dated March 9, 1984

To

M/s. Asia Tobacco Co. Ltd.,

Hosur.

Gentlemen,

Sub : C.E - Issue of Notification No. 284/82-CE Dated

Novemnber 30, 1982 - Effiective date for

Notification - Regarding.

Ref : Asst. Collector's C. No. V/4/30/103/82-T3

dated February 22, 1984.

Please refer to the letter of the Asst. 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 November 30, 1982, to December 7, 1982, at the revised rates as per the Notification No. 284/82 dated November 30, 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 differential duty.

This may please be treated as most urgent.

Yours faithfully,

(Sd.)

Superintendent of Central Excise,

Hosur IV Range.

Copy submitted to the Asst. Collector of Central Excise, Hosur Dvn., for favour of information with reference to this C. No. V/4/30/103/82-T3 dated February 22, 1984.'

This was followed by a further communication by the third respodent on April 2, 1984, in the following terms.

'Office of the Superintendent of Central Excise,Hosur IV Range, Hosur - 635 126.O.C. No. 165/84 Dated April 2, 1984.To

M/s. Asia Tobacco Company Ltd.,

Hosur.

Gentlemen,

Sub : CE - Cigarettes T.I. 4(II)(2) - Effective date for

Notificarion No. 284/82-CE dt. 30-11-82-

Differential duty for the period 30-11-82 to

7-12-82-Issue of demand - Ragarding.

You are hereby requested to pay the differential duty involved on the clearances of 62,064 M cigarettes effected during November 30, 1982, to December 7, 1982, amounting to Rs. 4,36,611.79 (details given below) immediately as your representation regarding the effective date of Notification No. 284/82-CE dated November 30, 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 of the above duty amount as this period November 30, 1982, to December 7, 1982, has been coverd by CMP. No. 5861/1983 in W.A. No. 343/1983 of the Madras High Court.

Rs.BED 2,19,754.69AED 1,94,881.63S : ED 21,975.47-----------------4,36,611.79------------------ Sd. S. Padmanabhan,

Superintendent of Central

Excise, Hosur IV Range,

Hosur.

Copy submitted to : The Assistant Collector Excise, Hosur, with reference to AC's letter C. No. V/4/30/103/82-T3 dated February 22, 1984, for favour of information.'

5. 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 the Notification No. 284/82-CE dated November 30, 1982, of the first respondent for the period from November 30, 1982, to December 7, 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 December 8, 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 certiorari calling for the records of the second respondent in Order No. O.C. No. V/4/30/103/82-T3 dated February 22, 1984, and quash the said order of the second respondent in No. O.C. No. V/4/30/103/82-T3 dated February 22, 1984.

6. Though the prayers are different, yet the grievance of the petitioner is based on only one aspect and that is, the Withdrawal Notification, though dated November 30, 1982, was in fact available to the public only on December 8, 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 r. 8 of the Rules gives power to the Central Government to authorise exemption from duty, in special cases, and this power of exemption could be exercised only by a notification in the Official Gazette as set out in r. 8(1) of the Rules and equally so, the power to withdraw the exemption could be exercised only by a notification in the Official Gazette and notification in the Official Gazette has got a legal and factual potency and the mere printing of the Official Gazette without making 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 the Withdrawal Notification being placed on sale for the public only on December 8, 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 April 23, 1983, requesting information on the actual date of publication of the Gazette which contained Notification No.284/82 dated November 30, 1982. The Controller of Publications, vide his letter dated March 23, 1983, addressed to the Accountant, ITC Limited, stated that Notification No. 284/82 dated November 30, 1982, was placed on sale for public on December 8, 1982.It is thus clear that the Notification was made available to the public only on December 8, 1982. It also explains why the third respondent did not demand duty at a higher rate on and after November 30, 1982, till December 7, 1982. It is clear that the second and third respondents were also not aware of the Notification No. 284/82 dated November 30, 1982, rescinding the earlier Notification No. 30/79 which provided for exemption on the rates of tariff rates of duty applicable to the cigrettes.'

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 the only condition that is prescribed in the rule is that the notification exempting or withdrawing the concession must be gazetted or made in the Official Gazette. The averment that the notification must be made available to the public not germane to excise law. The petitioner is attempting to import the above condition to suit their need, which is not prescribed. The Notification No.284/82 dated November 30, 1982, is effective only from November 30, 1982, and the respondents herein have not given any retrospective effect to the notification in question.

6. The allegations contained in paragraph 10 are denied. The statement that the respondents were not aware of the Notification till December 6,1982, is false and correct. The respondents are expected to be aware that the Notification No.30/79 which prescribed concessional rate was rescinded by Notification No.284/82 dated November 30, 1982, which was published in the Official Gazette (Extraordinary) on November 30, 1982. In fact, the draft notification in question was duly received by the Government of India Press on November 30, 1982, itself, for publication itself. Thus it could be seen that necessary changes in the Gazette of India, Extraordinary, (made) on November 30, 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 November 30, 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 directions contained in the parent Act or the relevant rules, as the case may be. It is respectfully submitted that the judgments cited by the petitioner are distinguishable. In the cases cited, the Hon'ble courts were interpreting the provision of law with reference to the conditions prescribed under relevant Act to give effect to the delegated legislation. I submit that the provisions of the Central Excises 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 for sale to public' are not synonymous. Offering for sale to public is a subsequent step which cannot be imported into the Act unless otherwise specifically provided for in the Act itself. The notification in question was published on November 30, 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 validly 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 foreign to excise law. The Central Excises 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 and hence the revised rate of duty is inapplicable to them. In such an eventuality, 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 this instant case, the Notification No. 284 of 1982, was published in the Gazette of India, Extraordinary, on November 30, 1982. The legal requirement to give effect to the notification has been complied with by publishing the notification in the Gazette of India on that date. This notification relates to the 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 a well known fact that prior to the budget, every year, because of speculation about increased levy on cigarettes, unscrupulous elements are indulging in hoarding cigarettes and charging higher rates to make quick money. Such being the position, it is not in the public interest to publish 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 the 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 cited, I state that the statutory provisions considered in those cases are not in pari materia with the provisions of rule 8(1) of the Central Excises Rules, 1944, and hence the present case is distinguishable.'

7. 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 placed on sale for the public on December 8, 1982, it would come into effect only on and 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 notifications in the Official Gazette, to exempt, subject to such conditions as may be specified in the notification , any excisable goods from the whole or any part of duty leviable on such goods. There cannot be any dispute that any notification withdrawing the exemption must also go through the same process of getting notified in the official Gazette. Can the bare printing of the Official Gazette containing the Withdrawal Notification and without the Official Gazette being made available to the public would amount to an effective notification As early as 1918, in Johnson v. Sargant & 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 May 16, 1917, but was not known to the parties to the action or to the public generally till May 17, 1917, would come into operation only when it became known, namely, on May 17, 1917. Bailhache J., who tried the action, observed as follows (p.103) :

'...The Order is dated May 16, 1917; the goods were paid for by the three people concerned, with banking hours, on May 16, 1917, although at what precise time on that day is not known. 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 on that date. I have no reason to suppose that any one 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 earliest moment of that day by analogy to the rule with regard to the construction of statutes. 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, there is about statutes a publicity even before they come into operation which is absent in the case of Orders 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 known, and as I have said, it was not known until the morning of May 17.'

8. In Harla v. State of Rajasthan, : [1952]1SCR110 , 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 make the same known to the public was sufficient to make it law. The Supreme Court observed as follows (p.468) :

'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 requires 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 the public have on access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to 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.'

9. In Mahendra Lal Jaini v. State of U. P., : AIR1963SC1019 , the Supreme Court held that a notification required to be published in the Gazette under s. 4 of the Forest Act is of on effect unless it is so published.

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 would seem reasonable that legislation of any kind should not be binding until it has somehow been 'made known' to the public; but that is not the rule of law, and if it were, the automatic cogency of a statute which has received the royal assent would be seriously and most inconveniently impaired. In a solitary case, however, before the passing of the Act of 1946 (The Statutory Instruments Act), in Johnson v. Sargant & Sons [1918] 1 KB 101, 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 be, known, but that this was not true of delegated legislation, which did not necessarily receive any publicity in Parliament or in any other way.

This was a bold example of judgment-made law. There was no precedent for it, and indeed a decision, Jones v. Robson [1901] 1 KB 673 which, though not on all fours, militated 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 review by a higher court

In State of Maharashtra v. M. H. George, : [1965]1SCR123 , though the notification under s. 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 no knowledge of the notification since he was out of India and, hence, it would not be deemed to be in force from the date of its issue or publication in the 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 of the reasoning 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 case before the Supreme Court. I feel obliged to refer to the following passages occurring in the judgment of Rajagopala Ayyangar J. (p. 743) : 'Taking the present case, the question would immediately arise, is it to be made known in India or throughout the world, 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 content 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 imposed for its violation. It is obvious that for an Indian law to operate and be effective in the territory where it operates, viz., the territory of India, it is not necessary that it should either be published or be made known outside the country. Even if, therefore, the view enunciated by Bailhache J. 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 to the notice of everyone who intends to pass through India. It was 'published' and made known in India by publication in the Gazette on the 24th November and the ignorance of it by the respondent who is a foreigner is, in our opinion, wholly irrelevant. It is, on doubt, admitted on behalf of the prosecution in the present case that respondent did not have actual notice of the notification of the Reserve Bank dated November 8, 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 mandatory, a failure to comply with those requirements might result in there being no effective order, the contravention of which could be the subject of prosecution but where there is on statutory requirement, we conceive the rule to 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 in the making of rules. In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being publication 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 subordinate 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 November 25, 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.'

10. 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 concerned. 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.

11. In Jagjit Singh v. State, , the argument that printing of a notice in the Official Gazette, if it was not out of the press, could not be deemed to be a good notice for the public at large, was countenanced to be one with considerable force, though the matter has got to disposed of on other points by the court.

In Narayana Reddy v. State of Andhra Pradesh [1969] 1 AWR 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 published or promulgated 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 principles of justice, freedom, equality and fraternity, cherished by all lovers of democracy and enshrined in our Constitution.

Subordinate legislation to take effect 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. Where the parent statute prescribes the mode of publication or promulgation, that mode must be followed, but where the statute is silent, the question arises, what is the 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 is not easy to visualise case 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 of universal application in the country is prescribed as the mode of publication, it can never be said to be satisfactory or reasonable 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, subordinate 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 but reasonable mode of publication.'

12. In G. Narayana Reddy v. State of AP [1975] 35 STC 319, a Bench of the High Court of Andhra Pradesh found that the concerned notification was printed and released to the public only on December 12, 1966, though the Gazette bore the date December 1, 1966, and December 11, 1966, both days inclusive, anterior to the printing and release to the public of the said notification.

13. In Yemmiganur Spinning Mills Ltd. v. State of AP [1976] 37 STC 314,Bench of the High Court of Andhra Pradesh, consisting of Chinnappa Reddy J., as he them was, and Jeevan Reddy J. dealt with a case where a Government Order rescinding the exemption under s.9 of the Andhra Pradesh General Sales Tax Act, 1957, with effect from April 19, 1971, by Notification dated May 18, 1971, was published in the Andhra Pradesh Gazette on July 1, 1971, and after referring to a number of pronouncements, it was held that the notification was effective and enforceable only on and from July 1, 1971, the date of its publication in the Andhra Pradesh Gazette and with effect from any earlier date. Jeevan Reddy J., speaking for the Bench, observed as follows (p. 316) :

'Now, for an effective administration of law, it is essential to observe the rule that ignorance of law is no excuse. But before the knowledge of law is attributed to every member of the public, the law must be published or promulgated for general information.'

14. The learned judge also referred to the observations of Chinnappa Reddy J., as he then was, in the earlier case [1975] 35 STC (AP),extracted above.

15. In State of MP v. Ram Ragubir Agarwal, , while construing the set of expression 'publish the same in such manner as may be prescribed' occurring in s. 3 of the M. P. Prathamik Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam (13 of 1973), Krishna Iyer J., observed as follows (p. 895) :

'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 of section 3 animates 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.'

16. The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to 'notification' within the meaning of r.8(1) of the Rules. The intendment of the notification in the Official Gazette is that in the case of either grant of withdrawal of exemption, the public must come to know of the same. 'Notify' even according to the ordinary dictionary meaning would be 'to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform'. It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public. The communication from the Department of Publication, Government of India, dated April 23, 1983 as per the extract made above, leaves no room for doubt that the Official Gazette containing the withdrawal notification was placed on sale for the public only on December 8, 1982. Without a proper notification in the sense, without putting the public on notice of the same, it is not possible to enforce the withdrawl of the exemption earlier accorded. It is not a case of printing, may be anterior to the publishing and realising 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 'notification' within the meaning of the rule, but only the date when the public gets notified, in the sense the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make he 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 third respondent dated December 6, 1982, which obviously was received by the petitioner on December 7, 1982, the petitioner was put on notice of the withdrawal notification. Hence, the Withdrawal must be held to be effective so far as the petitioner is concerned only from December 7, 1982. The consequence of lack of due notification is that the withdrawal notification became effective so far as the petitioner is concerned only on and from December 7, 1982. It had no legal efficacy anterior to that date. The respondents have not denied the factual position that the Official Gazette containing the Withdrawal Notification, though dated November 30, 1982, was, in fact, placed on for the public on sale for the public only on December 8, 1982. The respondents are taking up a stand that the petitioner is expected to be aware of the Withdrawal Notification and that the words 'publish in Official Gazette' and the words 'put up for sale to public' are not synonymous and offering for sale to the public is a subsequent step which cannot be imported into the Act, and the respondents are expressing similar stands. They could not be of any avail at all to the respondents to get out of the legal implications flowing from want of due notification, as exemplified above. Printing the notification in the Official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would certainly not satisfy the idea of notification in the legal sense. 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 due notification. A similar contention was repelled by the Supreme Court in State of MP v. Ram Ragubir Prasad , , by pointing out 'contextually' speaking, we are satisfied that 'publication'means more than mere communication to concerned officials or Department'. 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 declarartion will issue declaring that the Withdrawal Notification took effect only from December 7, 1982, so far as the petitioner is concerned.

17. With regard to W.P.No.6050 of 1984, that relates to the order dated February 22, 1984, whhereby the second respondent opined and reiterated the stand that the Withdrawal Notification will be effective from November 30, 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.

18. Coming to W.P. No.6048 of 1984, once it is held that so far as the petitioner is concerned the Withdrawal Notification could be effective only from December 7, 1982, the moneys collected in enforcement of the Withdrawal Notification for the relevant period anterior to December 7, 1982, naturally will have to be refunded. When duty has been collected in the enforcement of the Withdrawal Notification, which became efficacious in the eye of law only on and from December 7, 1982, so far as the petitioner is concerned, then the very collection is one which did not have the authority of law within the meaning of article 265 of the Consitution of India and to the citizen, who suffered this illegal imposition. In the said circumstances, this court, under article 226 of the constitution of India, had got jurisdiction and power for the purpose of enforcement of fundamental rights and statutoy rights to give the consequential relief by odering repayment of moneys realised by the Government without the authority of law. It would suffice the purpose if the following principles recognised by Krishna Iyer J., in shiv shankar Dal Mills v. state of Haryana, : [1980]1SCR1170 , are adverted to (PP. 1039, 1038) :

'Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such as public interest dictates and equity projects,'

'Where public bodies, under colour of public laws, recover people's moneys, later discovered to be erroneous levies, the Dharma of the situation admist 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 belongs. Nor is it palatable 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 marride to justice, is ubi jui ibi remediuym.'

19. However, Mr.C.Krishnan, learned addition Centeral Government standing 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 s. 11B of the Central Excises and Salt Act, 1944, and in the instant case, on such application has been made within time and hence this court shall not countenance the prater for refund. In answer, Mr. R. Sashidharan, learned counsel for the petitioner, would state that the payment was made only provisionally and that too, without prejudice to the rights of the petitioner and even assuming that there should be a formal claim for refund, that could be made after the final assessment has been made and, in the instant case, that stage has not yet 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 that this is not a case where the respondents were and are prepared to consider the claim for refund of duty on merits, except for the fact that there is a lapse of any prescribed time. The stand of the respondents has been expressed in unambiguous terms that thrre is no question of refund at all because, according to them, the date of the Official Gazette is the decisive date on and from which the Withdrawal Notification became effective and the duty collected is in order. This stand is a legal fallacy on facts. Furthermore, the petitioner has also categorically aaverred that it was clearing cigarettes manufactured at its factore regularly at the rates specified in the Exemption Notification, 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 Withdrawal Notification. On December 10, 1982, when the petitioner made the payments, of course, without prejudice, it was not aware of the legal effcacy of the legal efficacy of the With-drawal Notificatin becoming operative only on and form December 7, 1982. The payment was an erroneous payment in law. Even if the payment has been made voluntarily, it would not operate as estopplle. The payment has been made obviously, in ignorance of and on a misconception of the legal position that the demand was illegal. What was not legally due has been recovered and the Government is bound to refund the same, In its letter dated December 10, 1982, the petitioner had stated that a copy of the Withdrwal Notification had not been handed over to it. The respondents. on the other hand, were also insisting under a patently erroneous misconception of law that the Withdrawal Notification was effective even form November 30,1982, though it was not duly notified 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 suffering form a miscconception of the legal position. Viewed in this light the time-limit, if any, prescribed in the special statute which may govern the contingencies arising under it only need not be counted, and the ordinary law of misconception in law and, if so applied, there could not be any time bar. This is apart form the factual contention on behalf of the petitioner that even under the Act, time has not run out. In any event, once it is found that the levy and collection of duty are invalid in law, or in othe words, have no sanction in law on the basis of the declaration that the Withdrawal Notification did not take effect earlier to December 7, 1982, this court exercsing jurisdiction under article 226 fo the duty illegally collected. The restrictions as to limitation as found in the Act and the Rules cannot come in the way of the writ jurisdiction of this court.

20. Now it is admitted before me that the last clearanc date was only December 5, 1982, and in fact, the payment made, though without prejudice, covers the period form November 30, 1982, to December 5, 1982, only. Hence, W.P.No. 6048, is allowed and the respondents are directed to refund the minneys collected form the petitioner for the period form November 30, 1982, to December 7, 1982, in enforcement of the Withdrawal Notification ignoring the earlier Exemption Notification, I make no order as to costs in all there writ petitions.


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