S.B Sinha, A.C.J:—The matter was referred to this Bench keeping in view the importance of the question involved in this Appeal as to from which date two Notifications issued under section 25 of the Customs Act, 1962 (hereinafter referred to as ‘the Act’) would come into effect i.e from the date of printing or from the date first made available for sale to the public or the date mentioned in the Notifications irrespective of when the Notifications are printed in the Official Gazette or the date of sale thereof?

2. The fact of the matter is as follows:

The respondent herein placed an order for generating set on an exporter of Germany on 6th July, 1989 for a price of Rs. 2,00,90,000/-. A Notification bearing No. 59/89 was issued on 1st March, 1989, in terms whereof customs duty of such generator was payable at a maximum of 30 per cent. Another Notification bearing No. 144/90 was published on 20th March, whereby pegging applicable auxiliary duty was fixed at 30 per cent ad velorem. On or about 11th November, 1990, the respondent No. 1 filed an Advance Bill of Entry for home consumption which was recorded on 18.2.1990 Another Notification bearing NO. 296/90 superseeding Notification No. 59/89 was issued on 10th January, 1991, in terms whereof customs duty was fixed at 35% and which was put on for sale to general public by Department of Publication.

3. On 14th January, 1991 Notification No. 287/90, Customs dated 15th December, 1990 superseeding Notification No. 144/90 was issued, whereby auxiliary duty for sale was fixed at 50% ad velorem. A provisional assessment was made on 31st January, 1991 fixing the customs duty at 85% in terms of Notification No. 296/90 and auxiliary duty at 50% was fixed in terms of Notification No. 287/90 totaling Rs. 2,48,96,500/-. The appellant thereafter was levied with an excess duty of Rs. 73,22,500/-. The same was provisionally assessed and paid by the respondents under protest.

4. On 5th February, 1991 the respondent wrote to the Controller of Publications requesting him to supply a copy of the Gazette Notification No. 287/90 dated 15.12.1990 and Notification No. 296/90 dated 18.12.90 whereafter writ application was filed. The said writ application was allowed by an order dated 15.5.1992 Thereafter, the instant appeal was preferred.

5. The learned Judges constituted Division Bench of this Court, however, differed in their opinion. Keeping in view the importance of the question involved, this reference was made to the Full Bench.

6. Mr. Roy Chowdhury, the learned counsel appearing on behalf of the appellant, inter alia, submitted that in view of the decisions of the Supreme Court in Pankaj Jain Agencies v. Union of India, reported in A.I.R 1995 SC 360, it must be held that the Notification would come into operation on the date of its publication. The learned counsel submits that although in two latter judgments of the Apex Court being Collector v. New Tobacco Co., reported in 1998 (8) SCC 250 : 1998 (97) E.L.T 388 and Garware Nylons Ltd. v. Collector, reported in 1998 (100) E.L.T 321, it has been held that the date when a Notification comes into force is the date on which it is offered for sale to the public, the said decisions should not be relied upon keeping in view the fact that the earlier decision of Pankaj Jain Agencies (supra) had not been considered by the Apex Court in its latter judgment.

7. According to the learned counsel as and when a Notification issued under the Customs Tariff that binds the hands of the Customs Officer, he has no other option but to realise custom duties. Mr. Roy Chowdhury would urge that an officer of the Customs Department would be bound by such Notification.

8. Mr. Ghosh, the learned senior counsel appearing on behalf of the respondents, on the other hand, has relied on the aforementioned two decisions of the Apex Court in Collector of Central Excise v. New Tobacco Co., reported in 1998 (8) SCC 250 and Garware Nylons Ltd. v. Collector, reported in 1998 (100) E.L.T 321.

Section 25 of the Customs Act, reads thus:—

“S. 25—Power to grant exemption from duty.—

(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon.

(2) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by special order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable.

(3) An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty.”

9. A bare perusal of the aforementioned provisions would clearly show that all notifications have to be published in the Official Gazette. Such Notification has to be issued in public interest.

10. Admittedly, in terms of an order passed by the Division Bench, the Controller of Publication wrote to the Registrar of this Court in the following manner:—

“The undersigned is directed to refer order dated 8th Feb., 96 passed by the Hon'ble Justice Ruma Pal and Hon'ble Justice Sujit Kumar Sinha in Appeal No. 495/92, Matter No. 3706/91 Collector of Customs v. Jindal Strips Ltd., and to submit as under:

1. The Deptt. of Publication, Min. of Urban Affairs & Employment Civil Lines, Delhi-54 inter alia deals with the stocking, sale and distribution of Govt. Publications and Periodicals brought out by the Deptts./Ministries of the Govt. of India. The Deptts also supplies various parts of the Gazette of India etc., on annual subscription basis and provides authenticated copies of the required Gazette on payment basis as the issues of the various parts of Gazette are generally destroyed after the period of one year.

2. Notification No. 287/90—Customs dated 15.12.90 was published in the Extraordinary Gazettee of India Pt. II Sec. III. Sub-Sec. (I) (Issue No. 537) on 15.12.90

3. Notification No. 296/90 Customs dated 18.12.90 was published in the Extraordinary Gazette of India Pt. II Sec. III, Sub-Sec. (I) (Issue No. 545) on 18.12.90

4. The issues of the Extraordinary Gazette of India dated 18.12.90 and 15.12.90 were released for sale to the public on 10.1.91 and 14.1.91 respectively.

5. Authenticated copies of the above Gazettes are sent herewith. In view of the position explained above, no appearance on behalf of the Deptt. is being made on 20.2.96 before the Hon'ble Court.

The undersigned is directed to request you to kindly place the above position before the Hon'ble Court.”

11. An officer of the Department of Publication, Government of India was also examined on oath by the Division Bench on 28.2.96 He deposed:

“1. Do you know anything about this case?/Today I have received a message over telephone from the Assistant Controller of Publication, Delhi, in connexion with this case.

2. What is the message?/(Witness takes out a document from his possession and submits). It is a message received from S/Sri Tara Chand Azad, AC (Admn.) and Har Gopal, AC (Pub) of Department of Publication, Delhi, to-day at 10.30 A.M regarding the following information to be passed on to myself, Depot In-charge of Central Book Depot, Calcutta:

(1) Notification No. 346/154/90-TRU dated 15.12.90, Date of printing 12.1.91, Date of issue 14.1.91

(2) Notification No. 346/129/89-TRU dated 18.12.90 Date of printing 9.1.91, Date of issue 10.1.91

(3) This is with regard to Shri L.K Chatterjee, Central Govt. Advocate,

Appeal No. 495 of 1992,

Matter No. 3706 of 1991

Controller of Customs & Ors.

Versus

Jindal Strips Ltd. & Ors.”

12. Notification No. 287/90 appears in the Gazette of India dated December 15, 1990 along with a series of other notifications under the heading, “Ministry of Finance, Department of Revenue” which reads as follows:—

“G.S.R 959 (E)—In exercise of the powers conferred by sub-section (i) of section 25 of the Customs Act, 1962 (52 of 1962), read with sub-section (4) of section 64 of the Finance Act, 1990 (12 of 1990), the Central Government, being satisfied it is necessary in the public interest so to do hereby rescinds the following notifications of the Government of India in the Ministry of Finance (Department of Revenue),

1. No. 183—Customs, dated the 31st May, 1990.

2. No. 184—Customs, dated the 31st May, 1990.

(F. No. 346/154/90.TRU)”

13. Similarly, Notification No. 296/90- Customs Appears in the Gazette of India dated December 18, 1990 under the Heading: “Ministry of Finance (Department of Revenue) Notifications: New Delhi, the 18th December, 1990”. It also bears a number at the bottom of the Notification “(F. No. 346/129/89-TRU)”

The authorised copies of the Official Gazette bore the following endorsement on the back:

“Printed by the Manager, Govt. of India Press, Ring Road, New Delhi-110064 and published by the Controller of Publication, Delhi-110054, 1991.”

14. The purpose for publication of a Notification in the Official Gazette as also offering them for sale to the general public is with a view to make the law known to the general public. In the instant case the writ petitioner was burdened with a heavier duty on the ground that there had been no publication of the Notification in the manner specified. It is not in dispute that publication was mandatory but contention of the learned Counsel for the petitioner is that the mode thereof is directory in nature.

15. It is no longer in doubt or dispute that where a mode of publication is prescribed, the same should be scrupulously followed as other modes would necessarily be forbidden. The point at issue, in our considered opinion, is no longer res integra.

16. Judicial views have been expressed in no uncertain terms as to what publication connotes. The need for knowledge by the public is based upon the doctrine that ignorance of law is no excuse but such ignorance must emante from a right of information which is embodied in Article 21 of the Constitution of India.

17. In Harla v. The State of Rajasthan, reported in AIR 1951 SC 467, it was held:—

“Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which ever their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way, promulgation or publication of some reasonable sort is essential.”

18. Reference in this connection may also be made to Yommiganur Spinning Mills Ltd. v. State of Andhra Pradesh, reported in (1976) 37 STC 314 wherein the law has been stated in the following terms:—

“The idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour or totalitarianism and of the gestapo. It is repugnant to the principles of justice, freedom, equality and fraternity, cherished by all lovers of democracy and enshrined in our Constitution.”

19. In State of M.P v. Ram Ragubir Prasad, reported in AIR 1979 SC 888, it has been held:—

“Necessary publication is important and we should insist that the State Government not dismiss it as a ritual of little moment. As we have earlier indicated, but may repeat for emphasis that there is an object in publishing the syllabi and this public purpose will be stultified to the prejudice of the school-going community if the syllabi are not made known to the public generally. Only when they come to know about the syllabi prescribed, a representatives in the educational field or in the public sector may be able to tell the State Government what type of text books are available, what kinds of books will make for excellence in teaching and what manner of material will promote the interests of the students in the subjects of study. If there are existing text-books, Government may give consideration for them or may invite opinion of experts on their worth. Government may pay attention to the cost of the books so made available, their readability, their design and arrangement, the impression that they may produce on the plastic minds and a host of other factors. All these possibilities may be frustrated if the syllabi are not published.

What has been done in the present case by the State Government is to exercise its power under section 5 to prepare, print and distribute-textbooks of its own compilation. Certainly, this is well within the power of Government under section 5. To dispel misapprehension we emphasise that no private publisher has a right under section 4 that his textbook shall be prescribed or necessarily considered by Government. No such right as is claimed by the respondent-publisher has, therefore, been violated by the State Government we upset Government's text-books, not because the respondent-publisher has a right to have his books necessarily considered by the Government, but because the syllabi have not been published prior to the prescription of text-books.”

20. Yet again in B.K Srinivasan v. State of Karnataka, reported in 1987 (1) SCC 658, the Apex Court has held:—

“There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processed. Whether law is viewed from the stand-point of the ‘conscientious good man’ seeking to abide by the law or from the standpoint of Justice Holmes's ‘Unconscientious bad man’ seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.”

21. There are various other decisions of different High Courts to the same effect. Suffice it to point out that the matter has been considered in great details in Collector of Central Excise v. New Tobacco Co., reported in 1998 (97) E.L.T 388 wherein the decisions cited by Mr. Roy Chowdhury viz. Pankaj Jain Agencies (supra) and I.T.C Ltd. (infra) had been considered.

22. Upon taking into considerations various decisions including the State Of Maharashtra v. Mayer Hans George . reported in 1965 (1) SCR 123 and B.K Srinivasan v. State of Karnataka reported in 1987 (1) SCC 658, it was held:—

“Our attention was also drawn to the decisions of this Court in Pankaj Jain Agencies v. Union of India, 1994 (72) ELT 805 (S.C) : 1994 (5) SCC 198 and I.T.C Limited v. Collector Of Central Excise, Bombay, Bombay, 1996 (86) ELT 477 (S.C) : 1996 (5) SCC 538, but they are not helpful in deciding the question that arises in these cases.

23. We hold that a Central Excise Notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then 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.”

24. The Apex Court in Garware Nylons Ltd. (supra) followed New Tobacco Co. (supra) and held:—

“In view of the law laid down in the said decision, the Notification dated September 30, 1985 can be said to have been duly published when it is made known to the public. In the present case, the letter from the Assistant Collector (Periodicals) dated January 2, 1986 indicates that copy of the Gazette containing the Notification dated September 30, 1985, after printing, became available for public sale only on November 1, 1985. It must, therefore, be held that the effective date of the Notification dated September 30, 1985 was November 1, 1985.”

25. This aspect of the matter had been considered by one of us (S.B Sinha, J) in Bipin M. Pujara v. Commissioner Of Customs reported in 1999 (107) ELT 298 (Cal) wherein inter alia upon taking into consideration of the decisions cited at the Bar, this court clearly held:—

“The decisions of the Apex Court as referred to hereinbefore, in the opinion of this Court, in no uncertain terms state that before a person is made known of his liability under the Act, the same must be published by the modes prescribed therein as indicated hereinbefore publication of such law was considered to be an essential part of the principles of natural justice. Although ignorance of law, as is well known, is no excuse, but in view of the aforementioned decisions of the Apex Court it must be held that the executive must make all reasonable efforts to make the law known to the public.”

26. So far as the submission of Mr. Roy Chowdhury to the effect that the Apex Court in New Tobacco (supra) or Garware Nylons Ltd. (supra) had not taken into consideration Pankaj Jain Agencies (supra) and I.T.C Ltd. (supra) in proper perspective, is concerned suffice it to state that the decision of New Tobacco (supra) is in consonance with the earlier decisions of the Apex Court.

27. In Bipin M. Pujara (supra), it was held:—

“It is now a well settled principle of law that each and every decision of the Apex Court cannot be followed without considering the factual background and/or the argument advanced before it.

In Union of India v. Dhanwanti Davi, reported in 1996 (6) SCC 44, the Apex Court held as under:

“It is not everything said by a Judge while giving judgement that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendy. According to the well settled theory of precedents, every decision contains three basic postulates—(1) findings of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there, is not intended to be exposition of whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and, therefore, Judges are to employ an intelligent technique in the use of precedents.”

Yet again, a Division Bench of this Court, in Jaya Sen v. Sujit Kumar Sarkar, AIR 1998 Cal 288, of which one of us was a member, inter alia, held as under:

“27. It is now well known that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is also well known that even a slight distinction in fact or an additional fact may make a lot of difference in decision making process. See Quinn v. Lealtham (1900-1903) AER (Rep) 1, Krishna Kumar v. Union of India, 1990 (4) SCC 207 : (AIR 1990 SC 1782), Commissioner Of Income Tax v. Sun Engineering Works (P) Ltd., reported in AIR 1993 SC 43 : 1993 Tax LR 58, Regional Manager v. Pawan Kumar Dubey, reported in AIR 1976 SC 1766 and Municipal Corporation Of Delhi v. Gurnam Kaur ., reported in 1989 (1) SCC 101 : AIR 1989 SC 38.

28. It is also a settled law that a decision is not an authority on a point which was not argued. See Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, reported in 1997 (1) SCC 203.

As indicated hereinbefore, the questions raised in this application were not raised before the Apex Court in ITC Ltd. (supra) and Pankaj Jain Agency (supra); and in this view of the matter this Court is bound to follow the decisions wherein the Apex Court had relied on the law after considering the rival contentions on the point at issue.”

28. Yet again one of us (S.B Sinha, J.) in Writ Petition No. 1704(W) of 1997 (Mahamaya Roy Chowdhury v. 1st Land Acquisition Collector) disposed of on 25.11.1998 not only took into consideration the aforementioned decisions but also a Full Bench decision of the Kerala High Court in R.K.V Motors & Times (P) Ltd. v. Regional Transport Officer, reported in AIR 1982 Ker 156 as also considered several Acts which mandates sending of such decisions to certain public libraries and held:—

“Publication of a Gazette under the Statute or the Statutory Rules or an Administrative Order whereby and whereunder a person faces civil or evil consequences should be made available to him. In terms of sub-section (2) of section 4 of Act II of 1948 on publication of such notification the property vests absolutely in the State. Thus, upon publication of such notification a valuable right in the property of a citizen is taken away, subject of course, to payment of compensation therefor. When a person comes to know of publication of the notification, he may question the validity thereof in a court of law.”

29. In view of the aforementioned decisions of the Apex Court as also of this Court, we agree with the views expressed by the Hon'ble Justice R. Pal and disagree with the views expressed by Hon'ble Justice S.K Sinha.

30. For the reasons aforementioned, the appeal must be dismissed but in the facts and circumstances of this case, there will be no order as to costs.

M.H.S Ansari, J.:—I agree.

Barin Ghosh, J.:—I agree.

Appeal dismissed.

D.R.C