Notification comes into effect on date it is published and offered for sale - SC
WHEN does a notification issued under Section 5A of the Central Excise Act or Section 25 of the Customs Act come into effect?
This was a question I asked in the very first DDT on 01.12.2004.
DDT 1865 25.05.2012 asked,
When is a notification effective from ?
Section 5A(5) of the Central Excise Act stipulates,
(5) Every notification issued under sub-section (1) or sub-section 2(A) shall, -
(a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;
(b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations, Customs and Central Excise, New Delhi, under the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963).
Section 25(4) of the Customs Act has similar provisions.
Can't the publication and effective date of notification be more simple and transparent? And shouldn't the Law need a little change?
This was a question before the Supreme Court recently.
The High Court had held that for bringing the notification into force and making it effective, two conditions are mandatory, viz.,
(1) Notification should be duly published in the official gazette,
(2) it should be offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi.
The issue was a hike in the tariff value of certain oils by a notification dated 3.8.2001. The notification was sent for publication after the normal office hours, i.e., much after 5 p.m. on 03.08.2001. It was almost at the midnight, may be few minutes before 12 in the night. Even if it is to be treated as notification having been published on 03.08.2001 itself, i.e., just before the midnight, an issue has arisen as to whether it could be made effective qua the goods which were already cleared during the day time on the basis of earlier notification.
The High Court noted that the second condition was not satisfied inasmuch as it was offered for sale only on 06.08.2001, as it was published on 03.08.2001 in late evening hours and 04/05.08.2001 were holidays.
So the notification was effective only from 6.8.2001.
And the Supreme Court agreed. The appeal by the Department was dismissed and the appeals by the assessees were allowed.