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COLLECTOR OF CENTRAL EXCISE A v.

NEW TOBACCO CO.

JANUARY 9, 1998

[S.C. AGRA WAL AND G.T. NANA VAT!, JJ.] B

 Excise Law :

Central Excises and Salt Act, 1944 : Section 38. c Publication-Meaning of-Printing in official Gazette-Reid: Publication cannot be equated with mere printing-Publication means when it is made available to the public so that they can know about it-Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published-Central Excise D Rules, 1944.

Words and phrases:

"Publish "-Meaning of-Jn the context of S.38 of the Central Excises and Salt Act, 1944.

The respondent company was engaged in manufacturing cigarettes.

Since 1979, the respondent used to pay duty on cigarettes manufactured by it at the rate fixed by Central Excise Notification 1-3-1979, as amended from time to time. It was rescinded with effect from 30-11-1982 by Notification dated 30-11-1982, which prescribed new rates of duty. Between 30-11-.1982 F and 8-12-1982 the respondent paid duty at the rate fixed by the Notification dated 1-3-1979, as it did not know that a new Notification was issued on 30-11-1982. As the respondent had paid duty at a lesser rate the Excise Authorities raised a demand on the respondent to pay the differential amount between the duty short paid and the duty which had become payable in terms G of the new Notification dated 30-11-1982.

Being aggrieved the respondent preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal and contended that the Notification dated 30-11-1982 was made available to the public on 8-11-1992 _ and, therefore, duty at the enhanced rate could be lawfully demanded from H 63

A it only from 8-12-1982. The Tribunal held that publication as contemplated by Section 38 of the Central Excises and Salt Act 1944 and Rule 8 of the Central Exci;; e Rules, 1944 cannot be equated with mere printing and it is the availability of the printed material to the general public that constitutes the required publication and allowed the appeal. Hence this appeal.

B On behalf of the appellant it was contended that the only requirement of Section 38 of the Act is that all the rules made and notifications issued under the Act shall be published in the official Gazette; that the publication in the official Gazette is the only statutory requirement; and since the Notification was dated 30-11-1982 and the Gazette in which it was printed C also bore the same date, i.e., 30-11-1982, therefore, that date should be regarded as the date of its publication .

Dismissing the appeal, this Court

HELD: 1.

Section 38 of the Central Excises and Salt Act, 1944 D Provides that all the rules made and notifications issued under the Act, shall

be published in the official Gazette. So, the requirement of Section 38 is publication of the rules and the notifications in the official Gazette. The. requirement. of publishing the notifications would connote that what is intended to give notice or information to the public can be treated as published only when it is made available to the public so that they can know about it. The E requirement of publishing the notification in the official Gazette, which is an official journal or a newspaper containing public notices and other prescribed m:itters, also indicates that the word 'publish' in Section 38 should be so interpreted. [67 B-C; E-F))

F Webster's Comprehensive Dictionary, International Edition, Legal Glossary: Legislative Department, Ministry of Law, Justice and Company Affairs, Government of India, (1992) and Webster's Third New International Dictionary, referred to.

2. Central Excise Notification can be said to have been published, G except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been H duly published. [71-E-F)

Har/av. State of Rajasthan, 119521 SCR 110; State of Maharashtra v. A

...--( Maver Hans George, 11965] I SCR 123; State of Madhya Pradesh v. Ram Raghubir Prasad Agarwal, AIR (1979) SC 888 and B.K. Srinivasan v. State of Karnataka, 11987] I SCC 658, relied on.

Johnson v. Sargent, [19181 1 KB 101, referred to.

J..

Pankaj Jain Agencies v. Union of India, 11994] 5 SCC 198 and ITC Ltd. v CCE, [ 1996] 5 SCC 536, held inapplicable.

Asia Tobacco Co. Ltd v. Union of India, (1984) 18 ELT 152; (Mad.) GTC Industries Ltd. v. Union of India, (1988) 33 ELT 83 (Born.) and Universal c Cans and Containers v. Union of India, (1993) 64 ELT 23 (Del.), approved.

CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 4569 of 1989.

From the Judgment and Order dated 3.5.89 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi In A. No. E/A. No. 29of1984-

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R. Mohan, J. Vellapalli, H.N. Salve, R.N. Verma, V.K. Verma, D.N. Mehta, R.C. Mishra, Ms. Meera Agarwal, K.J. John, J.D. Jain, Kanwaljit Kochar, S.K.

Jain, Ravinder Narain, Ashok Sagar, Ms. Punita Singh, Mrs. Sonu Bhatnagar, Ms. Rahen Nath, Mukul Mudgal, Vikram S. Nankani, Ms. Bina Gupta, Ms. E Rakhi Ray, Ms. T. Sudha, Ms. Manjula Gupta, Ms. Lata Krishnamurti, D.S.

Mehra, Ms. Janki Ramchandran, K.K. Mani and C.V. Subba Rao for the appearing parties.

The Judgment of the Court was delivered by :

NANAVATI, J. In this batch of cases, the question that arises for F ."( '. consideration is whether a Central Excise notification comes into force with effect from the date on which it is pri'nted in the Government Gazette or from the date it is made available to public.

To illustrate the circumstances in which this question arises, we will G state the facts of Civil Appeal No. 4569 of 1989. The company involved in this appeal is the New Tobacco Company Limited. It was earlier known as -"( Duncan Tobacco Company. It is engaged in manufacturing cigarettes. Since 1979, it used to pay duty on cigarettes manufactured by it at the rate fixed by Central Excise Notification No. 30/79 dated !st March, 1979, as amended from time to time. It was rescinded with effect from 30th November, 1982 by H

A Notification No. 284/82-C dated 30th November, 1982, which prescribed new rates of excise duty. Between 30th November, 1982 and 8th December, 1982, -,.- 'i' the Company cleared 79,456 million cigarettes and paid duty thereon at the rate fixed by the Notification dated I st March, 1979, as it did not know that a new notification was issued on 30th November, 1982. As the Company had B paid duty at a lesser rate, a Show Cause Notice dated 22nd December, 1982, was issued calling upon the Company to show cause why it should not pay the differential amount between the duty short paid and the duty which had become payable in terms of the new notification dated 30th November, 1982.

The Assistant Collector by his Order dated I Ith April, 1983, confirmed the said demand. The order of the Assistant Collector was upheld by the Collector C of Central Excise (Appeals) on 4th October, 1985. It then appealed to the

Customs, Excise and Gold (Control) Appellate Tribunal. Only contention pressed by the Company therein was that the Notification dated 30th November, 1982 was made available to the public on 8th December, 1982 and, therefore, duty at the enhanced rate could be lawfully demanded from it only from 8th December, 1982. In support of its contention the company had produced a D letter dated 2nd August, 1983 obtained by its sister concern Mis. National ..Ir Tobacco Company from the Controller of Publications, Department of Publication, Ministry of Finance, Government of India, which stated that Notification No. 284/82 dated 30th November, 1982 was placed for sale to the public on 8th December, 1982. The Tribunal relying upon the said letter and E the decision of the Bombay High Court in G.T.C. Industries limitedv. Union of India, (1988) 33 ELT 83 held that publication as contemplated by Section 38 of the Central Excise and Salt Act, 1944 and Rule 8 of the Central Excise Rules, cannot be equated with mere printing and it is the availability of the printed material to the general public that constitutes the required publication.

Taking this view, it further held that the excess recoveries of duty made during F the period from 30th November, 1982 to 3rd December, 1982 cannot be retained by the Authorities as the Company was not liable to pay duty at the rate fixed by the Notification dated 30th November, 1982 for the said period. The Collector of Central Excise has, therefore, filed this appeal under Section 35- L (b) of the Act.

G It was contended by the learned counsel for the appellants that the only requirement of Section 38 of the Act is that all the rules made and notification issued under the Act shall be published in the official Gazette. Thus publication in the official Gazette is the only statutory requirement. The Notification is dated 30th November, 1982 and the Gazette in which it was printed also bears H the same date, i.e, 30th November, 1982 and, therefore, that date should be

regarded as the daie of its publication. On the other hand, it was contended A

T"""' by the learned counsel for the respondents that publication cannot be equated with mere printing and it is the availability of the printed material to the

--; general public that constitutes publication as required by the statute and the rules of natural justice.

.k Section 38 of the Act provides that all the rules made and notifications B

issued under the Act shall be published in the official Gazette. So, the requirement of Section 38 is publication of the rules and the notifications in the official Gazette. The dictionary meaning of the word 'publish' as given in Webster's Comprehensive Dictionary, International Edition, is "{I) To make known or announce publicly; promulgate; proclaim. (2) To print and issue to c the public. (3) To communicate to a third person." According to the Legal Glossary, published by the Legislative Department, Ministry of Law, Justice and Company Affairs, Government oflndia in 1992, it means "to make generally accessible or available; to place before or offer to public; to bring before the public for sale or distribution". Thus the word 'publish' connotes not only

~ +. an act of printing but also further action of issuing or making it available to D

the public. Notification, according to Webster's Third New International Dictionary, inter alia means "I: the act or an instance or notitying : Intimation, Notice; est: the act of given official notice or information; 2: a written or printed matter that gives notice". The Legal Glossary, referred to above, defines it as "a written or printed matter that gives notice". Even if we go by E the dictionary meaning the requirement of publishing the notifications would connote that what is intended to give notice or information to the public can be treated as published only when it is made available to the public so that they can know about it. The requirement of publishing the notifications in the official Gazette, which is an official journal or a newspaper containing public

A:. notices and other prescribed matters, also indicates that the word 'publish' F in Section 38 should be so interpreted.

We will now refer to the decisions to which our attention was drawn by the learned counsel. Jn Har/a v. The State of Rajasrhan, [1952] SCR 110, the facts were that a Council of Ministers, appointed to look after the G Government and Administration of Jaipur State during the Maharaj a' s minority,

-~ passed a resolution which purported to enact the Jaipur Opium Act and the question which had arisen for consideration of this Court was whether the mere passing of the resolution without promulgation or publication in the

~ Gazette or other means as known to the public was sufficient to make it law.

This Court referred to the rule prevailing in this behalf in England .that acts H

A of Parliamenf become law from the first moment of the day on which they received the Royal assent, but the Royal proclamations only when actually )-·..,. published in the official Gazette and cited with approval the decision in Johnson v. Sargent, (1918) l KB 101, wherein it was held that the order of the Food Controller did not become operative until it was made known to the B public. This Court also noticed that "nor is the principle peculiar to England.

It was applied to France by the Code Napolean, the first Article. of which states that the laws are executory "by virtue of the promulgation thereof' and that they shall come into effect "from the moment at which their promulgation

can have been known". It also pointed out that such a rule has been applied in India in, for instance, matters arising under Rule 119 of the Defence of India C Rules. It then made an important observation that this rule was only an application of a deeper rule which is founded on natural justice. It has further observed that "it would e against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice required D 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 all 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 E reached in the secret recesses of a chamber to which the public have no 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 civilized man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot F come into being in this way. Promulgation or publication of some reasonable sort is essential." Taking this view this Court held that a resolution of the Council of Ministers in the Jaipur State without publication was not sufficient to make the law operative.

In State of Maharashtra v. Mayer Hans George, [I 965] l SCR 123, G what had happened was that a German smuggler left Zurich for Manila by a

Swiss plane on 27th November, 1962 with 34 kilos of gold. He had not declared it in the manifest for transit. The plane arrived at Bombay on 28th.

The Passenger had remained in the plane. The customs authorities, on search, recovered the gold carried by him on his person. He was prosecuted for H importing gold into India in breach of Sections 8(1) and 23(1-A) of the Foreign

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Exchange Regulation Act and the notification dated 8th November, 1962 of the Reserve Bank of India, which was published in the Gazette of India on 24th November. The respondent was convicted by the Magistrate but acquitted by the High Court. One of the contentions raised by him was that a notification being merely subordinate and delegated legislation could be deemed to be in force only when it was brought to the notice of the persons affected by it and that as the same was published in the Gazette only on November 24, 1962 whereas he left Zurich on 27th, he could not have had knowledge about the restrictions imposed by that notification. This Court rejecting that contention held that the notification was published and made known in India by publication in the Gazette and the ignorance of it by the accused who was a foreigner was wholly irrelevant and made no difference to his liability. Relying upon the decision it was contended by the learned counsel for the respondent that it is the cardinal principle of the criminal jurisprudence that a person should not be convicted for an offence unless the person or persons affected by the prohibition are in a position to observe the law or to promote the observance of the law. The said observation was made by this Court in the context of mens rea being a necessary ingredient of the offence. In that very case this Court has observed that individual service of a general notification on every member of the public is not necessary and all that the subordinate law-making authority can or need do, would be to publish it in such manner that persons can, if they are interested, acquaint themselves with its contents.

In State of Madhya Pradesh v. Ram Ragubir Prasad Agarwal, AIR (.1979) SC 888, while interpreting the word 'publish' in Section 3(2) ofM.P.

Prathamik, Middle School Tatha Madhyamik Shiksha (Pathya Pustakon Sambandhi Vyavastha) Adhiniyam, this Court observed that "in our view, the ,

purpose ofS. 3 animates the meaning of the expression 'publish'.'Publication' p 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. Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the 'syllabi' it must publish 'the same' so that when the stage of G prescribing text-books according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable Government to decide upon suitable text-books from the private market or compiled under S.5 by the State Government itself. In our view, therefore, "publication" to the educational world is the connotation of the expression. Even the student and H

A the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the r~ departmental officialdom."

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Following this judgment Madras High Court in Asia Tobacco Co, Ltd

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v. Union of India (1984) IS ELT 152 held that in such cases the effective date is the date of knowledge and not the date of the official Gazette. The relevant observation made in paragraph 4 of the said judgment are as under :-

"The mere printing of the official Gazette containing the relevant notification and without making the same available for circulation and c putting it on sale to the public will not amount to the 'notification' within the meaning of rule 8( I) of the Rules. The intendment of the notification in the Official Gazette is that in the case of either grant or withdrawal of exemption the public must come to know of the same. 'Notify' even according to ordinary dictionary meaning would be "to

D take note of, observe; to make know, 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 ...... Neither the date of the notification nor the date of printing, E .nor the date of Gazette counts for 'notification' within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned G<1zette is made available to the public. The date of release of the publication is the decisive date to make.the notification effective. Printing of the Official Gazette and stacking them without

F releasing to the public would not amount to notification at all .... 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 a11d offering for sale to publish 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 y Official Gazette, without making it available for circulation to the concerned public, or placing it for sale to the said public, would H certainly not satisfy the idea of notification in the legal sense.".

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The same view was taken by the Bombay High Court in GTC Industries A •-'-\ Ltd, v. Union of India. (1987) 13 ECR 1161 and by Delhi High Court in Universal Cans and Containers v. Union of India, (1993) 9640 EL T 23 (Delhi).

The following observations made in the case of B. K. Srinivasan and others v. State oj.Karnataka, [1987] 1 SCC 658, also support the view that

we are taking :-

"Whether law is viewed from the stand point of the 'conscientious good man' seeking to abide by the law or from the stand point of Justice Holmes's 'unconscientious had man' seeking to avoid the law,

law must be known, that is to say, it must be so made it can be C known."

Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies v. Union of India and others [I 994] 5 SCC 198 and l TC.

Limited v. Collector a/Central Excise Bombay, [1996] 5 SCC 538 but they are not helpful in deciding the question that arises in these cases.

We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published

in such a manner that persons can, if they are so interested, acquaint E themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, tlie notification cannot be said to have been duly published.

As the view taken by the Tribunal is correct Civil Appeal No. 4569 of F 1989, field by the Collector of Central Excise, is dismissed with a direction that entitlement of the respondent company to the refund shall be determined by the Assistant Collector of-Central Excise in accordance with Section 11-B of the Central Excise Act.

Civil Appeal Nos, 45I3-45I4 of 1992 are dismissed.

Civil Appeals Nos, 1658-61 of 1994 and Civil Appeals Nos. 7719-21 of 1996 are partly allowed. The impugned judgments and orders passed by the High Court are set aside and the Assistant Collec, m of Central Excise to whom these cases have been remitted for considering the question of refund H

A in the light of Section 11-B of the Central Excise Act shall decide when the concerned notifications became effective in accordance with the view that we r have taken and after giving an opportunity to the respondents to lead evidence

in that behalf.

B Civil Appeal No. 1729 of 1993 is partly allowed. We set aside the order

passed by the High Court directing the appellants to refund Rs. 35,57,094. 74 and remit the matter on this point to the Assistant Collector of Central Excise to decide the entitlement of the respondent for refund in the light of Section

11-B of the Central Excise Act.

c Civil Appeal No. 3 I JI of 1993 is dismissed.

Civil Appeals Nos. 7684 and 7685 of 1996 and Civil Appeals Nos. 4913-

15 of 1993 are allowed. The impugned judgments and orders passed by the High Court are set aside and these matters are remitted to the Assistant

Collector of Central Excise for deciding when the concerned notification became effective in accordance with what we have held above and after giving an opportunity to the appellant company to produce evidence in that behalf and also to decide thereafter the question of refund in accordance with Section 11-B of the Central Excise Act.

E Civil Appeal No. 10001 of 1995 is dismissed.

Civil Appeal No. 5423 of 1993 is partly allowed. The impugned judgment . . of the Tribunal is set aside and the case is now remitted to the Tribunal to decide when the concerned notification had become effective after enabling F the parties to lead evidence in that behalf and also to decide the other contentions raised by the respondent-company and which were left open, if that becomes necessary.

Ci'lil Appeals Nos. 7534-35 of 1995 is dismissed as the demand for differential duty was in respect of the goods cleared on 25.3.1985 only and G admittedly the notification in question was not made available on that date

till the goods were cleared by the Company.

In S.L.P. © No. 19566 of 1994 we grant leave and partly allow this appeal. The impugned judgment and order passed by the High Court are set aside and these matters are remitted to the Assistant Collector of Central H Excise for deciding when the concerned notification became effective in

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accordance with what we have held above and after giving an opportunity A

...--..~ to the appellant company to produce evidence in that behalf. We pass no order as to costs in all these appeals.

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C.A. Nos: 4569/89, 7534-35/95, 4513-4514/92.3111/93. 10001/95 -dismissed.

C.A. Nos. 1658-61/94, 49/98, 7719-21 /96. 5423/93, 1729/93 - Partly allowed.

C.A. No. 7684/96, 7685/96, 4913-15/93 - allowed.

V.S.S. dismissed partly allowed. C