Madhav Stools v. UNION OF INDIA — 1997 DIGILAW 594 (GUJ)

S. D. PANDIT, J. ( 1 ) RULE. Mrs. Avani Mehta with Mr. H. M. Mehta appear for respondents. They waive notice of Rule. In these two petitions common questions of law and facts are arising and therefore, with the consent of the parties both these petitions are heard together. With the consent of the parties, both the petitions are heard together and they are being disposed of by this common order. ( 2 ) ONE Global Shiptrade Pvt. Ltd. the petitioner in SCA No. 7481 of 1997 and M/s madhav Tools a partnership firm the petitioner in SCA No. 7484 of 1997 are carrying on business of ship breaking in the ship breaking Yard at Alang, District Bhavnagar. In the normal course of its dismantling, breaking up the petitioners are effecting clearance of such ships by filing bills of entry with the concerned authorities at Alang and by paying the customs duties therein. The normal procedure for filing a bill of entry for clearance of the said ship is of setting out in the bill of entry weight of the vessel and details of consumable stores including different kinds of oils etc. , used by the ship and mention the relevant Tariff items and the said ship and the consumable stores lying therein are allowed to be cleared thereafter upon payment of customs duties per the provisions of Central excise and Salt Act, 1944 (hereinafter referred to as the Act), custom duty is payable under entry No. 89. 08 and 9805,10 under which the customs duty was being paid by the petitioners was of 2 per cent. ( 3 ) BOTH the petitioners had filed their bills of entry for assessing the custom duty at 2 per cent and the bills of entry made by them were also cleared by the authorities. But the respondent No. 4 addressed a letter on 26. 9. 1997 to the petitioner-Global Shiptrade Pvt. Ltd. and on 18. 8. 1994 to the petitioner M/s Madhav Tools that the custom duty has been raised from 2 per cent to 5 percent and they were called upon to pay and deposit the customs duty at the rate of 5 per cent by stating that said customs duty was raised from 2 to 5 percent on 16. 9. 1997 on account of the promulgation of the amendment to the Act by the President of India. 9. 1997 on account of the promulgation of the amendment to the Act by the President of India. ( 4 ) THE petitioners have come before this Court to challenge said claim made by respondent No. 4 asking them to pay the customs duty at 5 per cent on the strength of the alleged promulgation on 16. 9. 1997. It is the contention of the petitioners that there was no publication of the promulgation of the Notification by which the main Act is amended to raise the accustoms duty from 2 to 5 per cent on 16. 9. 1997 and there was also no knowledge of the said amendment and promulgation to either of the petitioners or even respondent No. 4 at any time prior to 18. 9. 1997. Respondent No. 4 received a fax message on 18. 9. 1997 as regards the said promulgation. Therefore, in the circumstances, the petitioners were not bound to pay customs duty at the enhanced rate. Therefore, they have come before this Court for seeking the quashing of the demand notice issued by respondent No. 4 by which he had demanded additional accustoms duty at the rate of 5 percent. ( 5 ) MR. Kantawala, learned counsel for the petitioner has brought to our notice the bill of entry filed by both the petitioners on 16. 9. 1997 and drew our attention to the particular fact viz. , that both the bills of entries were cleared and passed by respondent No. 4. He contended before us that from the fact that this bills of entries were cleared by respondent no. 4 clearly shows that on 16. 9. 1997 even respondent No. 4 had know knowledge of the promulgation issued by the President of India by which the customs duty was raised from 2 to 5 per cent. ( 6 ) HE vehemently urged before us that in view of the said rise in customs duty on the petitioners it must be shown that there was in fact publication of the said promulgations on 16. 9. 1997 and that the petitioners have knowledge about the same. He drew out attention to the Oxford English Dictionary wherein the word "promulgation" has been defined as to make known by publication, to publish and so on. He contended before us that the very fact that respondent No. 4 had cleared the bill of entry on 16. 9. 9. 1997 and that the petitioners have knowledge about the same. He drew out attention to the Oxford English Dictionary wherein the word "promulgation" has been defined as to make known by publication, to publish and so on. He contended before us that the very fact that respondent No. 4 had cleared the bill of entry on 16. 9. 1997 and that he had made a demand of the additional duties for the first time on 18. 9. 1997 clearly supports the claim of the petitioner that there was no publication of the said promulgation on 16. 9. 1997 and therefore, the petitioners are not bound by the promulgation of the finance Act (amendment ordinance 1997 ). He also drew our attention to the fact that the department of Revenue had also issued a letter No. 349/194/tru dated 18. 9. 1997 to inform the Customs and Central Excise Authorities about the said Ordinance dated 16. 9. 1997 and pointed out that in view of the issuance of the said letter on 18. 9. 1997 also indicate there must not be a publication of the ordinance by the President of India on 16. 9. 1997. In support of his contention he has placed reliance upon the decision of the division Bench of the Bombay High Court in the case of Union of India vs. GTC industries Ltd. , 1992 (39) ECR 92 (Bombay) In that case it has been held that the effective date of a Notification issued by the Central Government would be not the date on which the Notification printed in the Official Gazette but the date on which the official Gazette containing the Notification being made available for sale to the public. But in that case there was a question of subordinate legislation and that Division Bench of bombay High Court has taken the view that the Notification would be effective on the date when the Official Gazette would be made available for sale to the public. But in that case there was a question of subordinate legislation and that Division Bench of bombay High Court has taken the view that the Notification would be effective on the date when the Official Gazette would be made available for sale to the public. In a subsequent decision by the Division Bench of the same High Court in the case of 1994 (72) ELT 15 (Bombay) in the case of Chemifine vs. Union of India, it has been held as under:"the publication of the notification in the Government Gazette results into notice of the contents to the general public and it is not permissible to claim that in spite of publication in the Government Gazette results into notice of the contents to the general public and it is not permissible to claim that in spite of publication in the Government Gazette, the importers had to notice of the same. In a vase country like India the only mode of publication of government orders which have financial implications is by publication in the government Gazette. Section 81 of the Indian Evidence Act provides that the court shall presume the genuineness of every document purporting to be the official (iocument. The issuance of a notification in the Government Gazette is in the eye of law either notice or imputed knowledge of its contents to the citizens in general. "and they have approved the view taken by the Punjab and Haryana High Court in the case of Kashmiri Lai and Ors. vs. State of Punjab and Anr. , AIR 1984 (Punjab and Haryana) 87 In our opinion, the view taken by the Division Bench of the Bombay High Court in 72 elt 15 is quite rational and the same deserves to be followed. ( 7 ) BUT in the controversy before us it is not a question of subordinate legislation but the amendment in question is by way of an ordinance promulgated by the President of india under Art. 123 of the Constitution of India. A promulgation of an ordinance is quite different from publication of an enactment. When an ordinance is promulgated and when it says that said ordinance is coming into force at once it would be effective and enforceable as soon as the promulgation takes place. A promulgation of an ordinance is quite different from publication of an enactment. When an ordinance is promulgated and when it says that said ordinance is coming into force at once it would be effective and enforceable as soon as the promulgation takes place. The promulgation of the ordinance in common parlance mean the authority telling his officer or subordinates of its decision regarding issuance of an enactment or amendment enactment, signing such enactment or amendment Act and handing over the same to his officer with a direction to publish the same in the Official Gazette, that would amount to promulgation. It is not necessary that it must be promulgation. It is not necessary that it must be promulgated to citizens at large in the country. The provisions in question clearly mention in Sub-para (2) of Para 1 as under: "it shall come into force at once" copy of the said ordinance is produced by the petitioner on page 31 in SCA No. 7482 shows that it is promulgated on 16. 9. 1997. The respondents have also produced on record a copy of the Gazette dated 16th September, 1997 to show that there is publication of the said promulgation of ordinance in Official Gazette on 16. 9. 1991. The Full Bench of rajasthan High Court has considered the question as to what amounts to promulgation and when promulgation becomes effective in the case of Girijashanker vs. Lalu, AIR 1955 (Rajasthan) 151 and observed on page 153 as under :"but even though this difference is there, we are of the opinion thai Ordinance no. IX of 1949 did come into force on 21. 6. 1949. It is stated in the Gazette in which the Ordinance was published that it was promulgated by His Highness the Raj Pramukh on 21. 6. 1949. Under Sub-sec. (3) of Sec. 1 it was to come into force at once and not from the date of its publication in the Gazette, and therefore, unless there is something which compels us to hold that it can only come into force from the date of its publication in the Gazette, it is obvious that it must be held to have come into force on the date it was promulgated by his Highness the Rajpramukh, namely 21. 6. 1949. 6. 1949. In this connection, we have to examine the argument that there is no difference between promulgation and publication The very fact that the supreme Court has said that promulgation or publication of some reasonable sort is essential shows that there is a difference between promulgation and publication and that it may be possible that one may have promulgation without publication in the Oxford English Dictionary promulgation has a number of meanings, namely "to make known by public declaration, to publish and so on. Where a distinction has to be drawn between publication and promulgation it is obvious that promulgation properly so called is only making known by means of declaration, and would not necessarily include publication in the gazette or through any other means. The matter is made clear in Websters Dictionary where the primary meaning of promulgate is given as to make known boy open declaration as a law, decree etc. "further it is said at the same place that promulgation of a law is the executive act by which a valid law is put into force after being passed; it may or may not involve publication. Promulgation then cannot be synonymous with publication, though there is some element of publication on promulgation. For example, if a king were to appear in a market place and declare to the people assembled there that he was making such and such law from that moment, that would be promulgation of that law, though it may not amount publication in the sense that it was made widely known to his subjects. It seems that promulgation precedes publication and is a declaration by the authority having the power to make laws that the law has been made. This declaration may be made to a limited number of persons (may be the servants of the authority concerned) and it is for them later on to publish the law as promulgated by the authority. This seems to be distinction between these two words, and promulgation comes before publication, and is not always synonymous with it. Let us see then what actually happened in this case. Ordinance IX of 1949 was published in the Gazette on 25, 6. 1949. It is mentioned there that it was promulgated by His Highness the Rajpramukh on 21. 6. 1949. Let us see then what actually happened in this case. Ordinance IX of 1949 was published in the Gazette on 25, 6. 1949. It is mentioned there that it was promulgated by His Highness the Rajpramukh on 21. 6. 1949. We infer from this that High Highness the Rajpramukh made it known presumably to the public servants in the Secretariat that he was promulgating this law and left it to them to see that it was published. He also made it clear at the same time that the law was to come into force at once and that meant that it was to come into force as soon as he promulgated it. In these circumstances, the Ordinance having been promulgated by His highness on 21. 6. 1949 and it being provided that it was to come into force at once, we must hold that it came into force from the day of its promulgation, namely 21. 6. 1949 and not from the date on which it was published in the rajasthan Gazette. If the intention was that it should Come into force from the date of its publication, it could have been made amply clear by so providing it in sub-sec. (3) of Sec. 1 as it is so in so many cases". In our opinion, the above observations of the Full Bench of Rajasthan High Court fully covers the case before us. In our opinion, when once it is shown that President had promulgated the said Ordinance on 16. 9. 1997 and when the Ordinance says that it would be effective "at once" said ordinance which raises customs duty payable by the present petitioner from 2 to 5 percent-will be effective from zero hours of 16. 9. 1997. Thus we hold that there is no substance in both the petitions and they deserves to be rejected and we accordingly reject the same. Rule discharged. No costs. .