DDT question
Last week's DDT question for you was "When does a notification issued under Section 5A of the Central Excise Act or Section 25 of the Customs Act come into effect".
The answer to the question covers a long story. In Pankaj Jain Agencies Vs. Union of India [1994 (72) E.L.T. 805 (SC)] it was held that mere publication in the gazette was enough and no further making available the notification to the public was required. In Collector of Central Excise Vs. New Tobacco Company [1998 (97) E.L.T. 388 (SC)] the Supreme Court held that if the publication of notification was through a gazette, the 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 duly published.
In Garware Nylons Ltd Vs. Collector [1998 (100) E.L.T. 321 (SC)] the Supreme Court relied on the New Tobacco case and held that notification can be said to have been duly published when it made known to the public. As there were conflicting judgements of the Supreme Court, the issue was referred to a larger Bench. The Larger Bench in Union of India Vs. Ganesh Das Bhojraj () held that a notification would come into operation as soon as it is published in the official gazette and no further publication is required. So the decision in Pankaj Jain Agencies was held to be the correct law while the New Tobacco Company case was held to be not the correct law.
Interestingly in this case justice Lahoti gave a separate, though assenting judgement. He clarified that the view taken by the court will be confined to civil liabilities only and cannot be made a rule for universal application. What will happen if criminal consequences are to be inflicted by a notification and that notification though published in the gazette is not made available to be seen by those affected? The court left this question open for a future case. But justice Lahoti remarked where mens rea is an ingredient of offence committed by breach of a notification, ignorance of the notification would be a good plea for innocence.
So the Supreme Court's ruling is that a notification is effective from the day it is published in the gazette, whether the gazette is available or not. But this is for the pre-1998 period. With effect from 1.8.1998, Section 5A and Section 25 have been amended to provide for the effective date of the notification. Now the notification will come into force on the date of its issue for publication in the official gazette. Unless a specific date is mentioned in the notification itself. Though this section requires the notification to be published and offered for sale by the Directorate of Publicity and Public Relations on the date of issue, this has nothing to do with the effective date of the notification.
Now the position is the notification is effective from the date of its issue for publication in the official gazette and not the date of publication in the gazette. This view has been upheld in a recent order of the Bangalore Bench of the CESTAT in (2004-TIOL-1013-CESTAT-BANG) in Hindustan Zinc Ltd. Vs. Commissioner, Wherein the Tribunal in Para 3 held that the Apex Court had in Union of India Vs. Ganesh Das Bhojraj had laid down that the effective date of notification will be the date on which the notification is dated. With all due respects to the Tribunal it is humbly submitted that the Apex Court in Ganesh Das Bhojraj case did not hold so. The Apex Court had held that the effective date is the date of publication in the gazette. But that was for the pre 1998 period. Now the law is very clear that the notification is effective from the date of its issue. Supreme Court had also taken note of the amendment to Section 25 in the Ganesh Das Bhojraj case.
DDT thanks all the netizens who responded to the question and regrets that due to the tremendous response, it is not possible to give here the names of all the enlightened netizens who had answered the question. DDT will be grateful for your continued support and response.