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2013 DIGILAW 122 (AP)

K. G. F. Cotton Pvt. Ltd. v. Union of India

2013-02-20

G.RAGHURAM, M.S.RAMACHANDRA RAO

body2013
ORDER M.S. Ramachandra Rao, J. 1. Heard Sri S.R. Ashok, learned Senior Counsel for Sri Y. Srinivas Reddy, counsel for the petitioners and Sri P.S.P. Suresh Kumar, counsel for the respondents. As a common issue of law arises in these cases, they are being disposed of by a common order. 2. The petitioners are engaged in the business of purchase and sale of R.B.D. Palmolein oil, etc. They were clearing the said goods for consumption within the country. As per statutory requirements, the bills of entry were filed by them with the Customs Authorities both at the time of bonding in and clearing from the warehouse. 3. The petitioners, in the course of business imported R.B.D. Palmolein (hereinafter referred to as "goods"), and submitted bills of entry duly paying customs duty with reference to the actual value of the imported goods in terms of S. 14(1) of the Customs Act, 1962. 4. A portion of the imported goods was cleared by the petitioners on 03.08.2001 and 04.08.2001 on the basis of valuation with reference to actual value. 5. The Central Board of Excise and Customs issued a notification No. 36/2001-CUS(NT) : dated 03.08.2001 fixing the tariff value of R.B.D. Palmolein oil at US $ 372 PMT w.e.f. 03.08.2001 in terms of S. 14(2) of the Act. 6. Therefore the 2nd respondent issued notices to the petitioners directing them to pay further amounts on the basis of the above notification fixing tariff value for the said goods. 7. The petitioners contend that the said notification No. 36/2001-CUS(NT) : was not published in the Gazette on 03.08.2001; that the said Gazette was not available to public access on 03.08.2001; that the said notification was published and made available to the public only on 06.08.2001 and therefore no further customs duty as demanded by the 2nd respondent is payable by them. It is submitted that none had knowledge about the above notification; that a statutory notification would take effect only from the date and time when it is actually published and made available to the public; that the notification would not come into effect on 03.08.2001 as it was published only on 06.08.2001. Reliance is placed on Collector of Central Excise v. Nezv Tobacco Co. Reliance is placed on Collector of Central Excise v. Nezv Tobacco Co. and others (1) (1998) 97 ELT 388 (SC) : 1998 (1) ALT 9 (DN SC), Param Industries Ltd., v. Union of India (2) (2002) 150 ELT 3 (Karnataka) and on letter dated 10.09.2001 issued by the Assistant Controller (Business), Department of Publication, Government of India, New Delhi bearing Ref.Gazette/K1318/2001 addressed to one M/s. Ruchi Aczori Industries Ltd., New Delhi stating that the Gazette was made available for public sale on 06.08.2001 as per their records. 8. In the counter affidavit filed by the respondents, it is asserted that the notification No. 36/2001-CUS(NT) : was published on 03.08.2001; that it is effective from 03.08.2001; that the Supreme Court in Union of India v. Ganesh Das Bhaj Raj (3) : (2000)116 ELT 431 (SC) had held that notification comes into operation as soon as it is published in the Official Gazette; individual service of the general notification on every member of the public is not required; non-availability of Gazette notification cannot be pleaded by the petitioners for denying liability to pay duty as per the notification; and that the 2nd respondent had rightly assessed the goods to proper duty liability and communicated them to the petitioners. 9. We have noted the submissions of the respective parties. 10. The Karnataka High Court in Param Industries Ltd. (supra) dealt with the same notification and held that the notification was not published on 03.08.2001; that it was published on 06.08.2001 as per the letter dated 10.09.2001 of the Assistant Controller (Business), Government of India, Department of Publication, New Delhi referred to above; that a notification can be said to be made on the same day only if it is published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi and that failure to do so will not make the notification effective from the date of its issue for publication. However, we are informed that Civil Appeal No. 7801-7811 of 2004 were filed in the Supreme Court against the said decision of the Karnataka High Court and the Appeals are pending before the Supreme Court. 11. However, we are informed that Civil Appeal No. 7801-7811 of 2004 were filed in the Supreme Court against the said decision of the Karnataka High Court and the Appeals are pending before the Supreme Court. 11. Before this Court, the counsel for the respondents has produced an attested copy of the Gazette of India No. 549 dated 03.08.2001 showing that the notification No. 36/2001-CUS(NT) : issued by the Central Board of Excise and Customs was published on 03.08.2001. 12. Sub-section (2) of S. 14 of the Act empower the Board to fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, by notification in the Official Gazette and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. 13. In contrast, S. 25(1) empowers the Central Government to grant exemption of goods from duty and sub-section (4) thereof states that such notification will come into force on the date of its issue by the Central Government for publication in the Official Gazette and offered, for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. 14. In view of the fact that there is no requirement in S. 14 that, to be effective, a notification issued under the said provision, should also be offered for sale, we are unable to accept the contention of the counsel for the petitioners that duty cannot be demanded on the basis of a notification, till it is made available to the general public by being offered for sale. 15. In New Tobacco Co. and others (supra), a 2 Judge bench of the Supreme Court held that a notification issued by the Board of Central Excise and Customs under S. 38 of the Central Excises and Salt Act, 1944 would be effective only if it is published and also made available to the public. 16. 15. In New Tobacco Co. and others (supra), a 2 Judge bench of the Supreme Court held that a notification issued by the Board of Central Excise and Customs under S. 38 of the Central Excises and Salt Act, 1944 would be effective only if it is published and also made available to the public. 16. In Pankaj Jain Agencies v. Union of India (4) : (1994) 5 SCC 198 dealing with a notification under S. 25 of the Customs Act, 1962 (before sub-section (4) was added in S. 25by Act 21 of 1998, S. 99 w.e.f. 1.8.1998), the Supreme Court held that if a mode of publication is prescribed in a statute, the notification will come into effect from the date of its publication in the official gazette and that it is not necessary that the notification be made known or broadcast in some recognizable way to make it enforceable. The Court rejected the contention of the petitioner that until the notification was made available in Bombay, where the petitioner carries on business, it will not be operative. There was no contention raised in the said case that the notification was not published in the Gazette on the date it bears or that the notification was not offered for sale to the public on the date of its publication in the Gazette. 17. The above two cases were considered by a 3 Judge bench of the Supreme Court in Ganesh Das Bhoj Raj (supra). The Supreme Court overruled New Tobacco Co. (supra) and approved the decision in Pankaj Jain Agencies (supra). It held that for bringing a notification u/s. 25 of the Act into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated; that individual service of a general notification on every member of the public is not required and the interested person can acquaint himself with the contents of the notification published in the gazette; that gazette is admissible being the official record evidencing public affairs and the Court is required to presume its contents as genuine u/s. 35 and 38 r/w S. 81 of the Evidence Act, 1872 unless the contrary is proved. It held that the original copy of the notification dated 04.02.1987 published in the Gazette on the said date was produced before it and therefore it rejected the contention that the notification dated 04.02.1987 was not published in the Gazette on the same day. 18. In the present case, the attested copy of the Gazette of India dated 03.08.2001 containing publication of the notification No. 36/2001-CUS(NT) : dated 03.08.2001 is produced before us. It is also asserted in the counter affidavit that the said notification was published in the Gazette of India on 03.08.2001 itself. Being the official record evidencing public affairs, The Gazette is admissible and the Court is required to presume its contents as genuine u/s. 35 and 38 r/w S. 81 of the Evidence Act, 1872. No satisfactory evidence is produced by the petitioners to rebut the said presumption. In view of the decision of the Supreme Court in Ganesh Das Bhoj Raj (supra), we respectfully dissent from the decision of the Karnataka High Court in Param Industries Ltd. (supra), and hold that the said notification was published on 03.08.2001. We reject the contention of the petitioners that it was not published on 03.08.2001 and was not made available for sale till 06.08.2001. We find no merit in the writ petitions. They are accordingly dismissed. No costs. ORDER G. Raghuram, J. The learned counsel for the petitioner has made an oral application for grant of leave to appeal to Supreme Court under Article 32 of the Constitution. Since no substantial question of law of general importance arises and the conclusion herein is founded on binding precedents, leave is refused.