COLLECTOR OF CENTRAL EXCISE Vs. NEW TOBACCO CO

JUDGEMENT

(1.) In this batch of cases, the question that arises for consideration is whether a Central Excise notification comes into force with effect from the date on which it is printed in the Government Gazette or from the date it is made available to public.

(2.) To illustrate the circumstances in which this question arises, we will 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 1st March, 1979, as amended from time to time. It was rescinded with effect from 30th November, 1982 by Notification No. 284/82-C dated 30th November, 1982, which prescribes new rates of excise duty. Between 30th November, 1982 and 8th December, 1982, the Company cleared 79,456 million cigarettes and paid duty thereon at the rate fixed by the Notification dated 1st March, 1979, as it did not know that a new notification was issued on 30th November, 1982. As the company had paid duty at a lesser rate, a Show Cause Notice dated 22th 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 11th April, 1983, confirmed the said demand. The order of the Assistant Collector was upheld by the Collector 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 letter dated 2nd August, 1983 obtained by its sister concern M/s. National 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 the decision of the Bombay High Court in G.T.C. Industries Limited v. Union of India, (1988) 33 ELT 83, held that publication as contemplated by Section 38 of the Central Exises 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 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.

(3.) 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 notifications 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 the same date i.e. 30th November, 1982 and, therefore, that date should be regarded as the date of its publication. On the other hand, it was contended 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.