SHAH - (1.) TWO Judges Bench of this Court by order dated 15/10/1999 has referred this matter to a larger Bench by observing thus:- "It appears that there is a conflict in the ratio of the decisions of this Court in M/s. Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198 : (1994 AIR SCW 4552 : AIR 1995 SC 360); Collector of Central Excise v. New Tobacco Co., (1998) 8 SCC 250 : (1998 AIR SCW 319 : AIR 1998 SC 668) and I.T.C. Limited v. Collector of Central Excise Bombay, (1996) 5 SCC 538 is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench."
(2.) BEFORE referring to the said decision, we would narrate few facts involved in the matter. Respondent admittedly imported a consignment of Green Beans (Pulses) weighing 505-505 M.T. vide Invoice No. 14/099 dated 31-12-1986. They have filed bill of entry for the same on 5-2-1987. The importer claimed clearance of the said goods free of duty on the basis of Exemption Notification No. 129/76-Cus dated 2-8-1976. However, it was pointed out that on 4-2-1987 the said notification was amended vide Notification No. 40/87-Cus, whereby basic duty @ 25 Per Cent was levied. As the duty was levied @ 25 Per Cent , importer filed Writ Petition No. 535 of 1987 in the High Court of Bombay contending inter alia that the said notification was not duly published and that it was not in force on the date. A Division Bench of the High Court of Bombay accepting the said contention on the basis of Full Bench decision of the said Court in the case of Apar (P) Ltd. v. Union of India, (1985) 22 ELT 644 : (1986 Tax LR 2022) allowed the writ petition. Hence the present appeal by the State. At the outset, we may state that in appeal filed before this Court the judgment of the Full Bench of the High Court of Bombay in Apar (P) Ltd's case (1986 Tax LR 2022) (supra) was set aside (Re : Union of India v. Apar (P) Ltd. (1999) 6 SCC 117 : (1999 AIR SCW 2676 : AIR 1999 SC 2515).
(3.) A copy of Original Extraordinary Gazette of India dated 4/02/1987 (Part-II - Section 3 - Sub-section (i) is produced for our perusal. The said notification reads as under:- "MINISTRY OF FINANCE (Department of Revenue) New Delhi, the 4/02/1987 NOTIFICATION No. 40/87-CUSTOMS G.S.R. 81(E).- In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following amendment in the notification of the Government of India in the Department of Revenue and Banking No. 129/76-Customs, dated the 2nd August, 1976, namely:- In the said notification, for the words 'from the whole of the duty of customs leviable thereon which is specified in the said First Schedule" the words "from payment of so much of that portion of the duty of customs, which is specified in the said First Schedule as in excess of twenty five per cent ad valorem" shall be substituted." The contention is - the aforesaid Notification was not made available to public at large and, therefore, on the basis of the said Notification customs duty cannot be levied. The learned counsel for the appellant relied upon the decision in M/s. Pankaj Jain Agencies v. Union of India, (1994) 5 SCC 198 : (1994 AIR SCW 4552 : AIR 1995 SC 360) and the learned counsel for the respondent-importer has relied upon the decision in Collector of Central Excise v. New Tobacco Co. (1998) 8 SCC 250 : (1998 AIR SCW 319 : AIR 1998 SC 668) in support of their respective contentions.;