ORDER
D.C. Mandal, Member (T)
1. In exercise of the powers conferred by Sub-section (1) of Section 9 of the Industries (Development and Regulation) Act, 1951, the Central Government in the Ministry of Industry (Department of Industrial Development) issued an order dated 27-10-1980 levying cess on paper, paper board and certain other goods as specified therein, at the rate of 1/8% ad valorem with effect from 1-11-1980. The Order was published in Gazette of India: Extraordinary (Part II -Section 3(ii) dated 27-10-1980. The Paper and Paper Board Cess Rules, 1981 were published in a Notification dated 16-2-1981 laying down the procedure for collection of the aforesaid Cess. The appellants are manufacturers of paper and paper board. They paid Cess on their products during the period from 1-11-1980 to 15-2-1981 at the aforesaid rate. They submitted an application claiming refund of the Cess paid, on the ground that no Cess was payable during the period from 1-11-1980 to 15-2-1981 as the rules prescribing the procedure for collection of Cess was published in the official Gazette on 16-2-1981. The refund claim was rejected by the Assistant Collector of Central Excise on the ground that Cess was correctly payable from 1-11-1980 as per the Order dated 27-10-1980 notified in the Gazette of India: Extraordinary. Appeal filed against the order of the Assistant Collector was rejected by the Collector of Central Excise (Appeals) in the impugned order. Hence the present appeal before this Tribunal.
2. During the hearing before us, the learned Advocate for the appellants argued that the liability to pay Cess arose from the date on which the Notification was made available to the public. Printing of Notification is not publication. According to him, the Notification was made available to the public on 16-2-1981, i.e. the date on which the Paper and Paper Board Cess Rules, 1981 were notified. The learned Advocate relied upon the decisions reported in 1975 (35) STC 319 (Andhra Pradesh), 1984 (18) ELT 152 (Madras), AIR 1979 (SC) 888, AIR 1951 SC 467 and 1976 (37) STC 314.
3. Arguing for the respondent, Shri Shishir Kumar, SDR disputed the learned Advocate’s argument that the Notification was not made available to the public on 27-10-1980. He has argued that Cess was correctly charged according to the provisions of the Notification dated 27-10-80 and therefore, the refund claim was correctly rejected by the authorities below.
4. We have considered the submissions of both sides and have carefully gone through the records of the case placed before us. We are unable to accept the contention of the learned Advocate that the Order dated 27-10-1980 levying Cess on the goods in question at the rate of l/8th per cent ad valorem with effect from 1-11-1980 was not made available to the public on 27-10-1980. There is no material before us to support his contention. The mere fact that the draft rules were published in the Gazette of India on 27-10-1980 inviting suggestions or objections and that the Paper and Paper Board Cess Rules, 1981 were notified in the Gazette of India on 16-2-1981 does not mean that the Government Order levying Cess at the rate of l/8th per cent with effect from 1-11-1980 was not published for information of the public on 27-10-1980. It cannot also be said that this Order dated 27-10-1980 was not effective till the rules prescribing the procedure of collection of Cess were published on 16-2-1981. According to the Government Order, the levy of Cess was effective from 1-11-1980. The same question was examined by this Tribunal in great detail in the case of Andhra Pradesh Paper Mills Ltd. v. Collector of Central Excise, Guntur, reported in 1986 (23) ELT 242. A similar contention as in the present case that the Cess was recoverable only from 16-2-1981, was raised by the appellants in the aforesaid case. This Tribunal held that the contention that the Cess would be considered as a duty of Central Excise recoverable only from 16-2-1981 and not earlier, had no force. It was held that Cess became leviable from 1-11-1980 and the obligation of pay the same did not depend on the appointment of a Collector, but its assessment and collection accrued with effect from 1-11-1980 and it subsisted during the entire period, including the one when there was no collector to collect it. A similar view has been taken by this Tribunal in its Order No. 492/86-C dated 8-8-1986 in Appeal No. ED/SB/733/82-C in the case of Mysore Paper Mills Ltd. v. Collector of Central Excise, Madras, Order No. 213/87-C dated 22-1-1987 in Appeal No. ED/SB/1246/83-C in the case of Ballarpur Industries Ltd. v. Collector of Central Excise, Bombay and Order No, 464/87-C dated 30-6-1987 in Appeal No. ED/SB/2245/83-C in the case of Mandya National Paper Mills Ltd. v. Collector of Central Excise, Bangalore. We find no reason to take a different view and accordingly, following the aforesaid four decisions, we hold that the Cess was correctly recovered in the present case during the period from 1-11-1980 to 15-2-1981 and the appellants were not entitled to the refund thereof. There is, therefore, no justification to interfere with the orders of the lower authorities. In the result, we uphold the impugned order and dismiss this appeal.
5. The learned Advocate for the appellants has relied on a few decisions as indicated in paragraph 2 (Supra). In the case of Shri G. Narayan Reddy and Ors. v. State of Andhra Pradesh and Ors., reported in 1975 (35) STC 319 (Andhra Pradesh), the Government Order altering the third schedule to Sales Tax Act regarding the rate of sales tax was published in the” Gazette dated 1-12-1966, but it was found that the Gazette was printed and released to the public only on 12-12-1966. It was held that the Government Order could not be given effect to during the period from 1-12-1966 and 11-12-1966. The facts of that case is clearly distinguishable from the facts of the present case inasmuch as there is no material to show that the Central Government Order dated 27-10-1980 levying Cess on certain category of goods was not printed and released to the public before 1-11-1980, i.e., the date of effect of Government Order. In the case of Asia Tobacco Co. Ltd. v. Union of India and Ors., reported in 1984 (18) ELT 152 (Madras), the Hon’ble Madras High Court held that mere printing of the Notification in the official Gazette without making the same available for circulation and putting it on sale to the public would not amount to “Notification” within the meaning of Rule 8(1) of the Central Excise Rules, 1944. In the said case communication from the Department of Publication, Government of India dated 23-4-1983 left no room for doubt that the official Gazette containing the withdrawal of Notification was placed on sale for public only on 8-12-1982 and therefore, it was not possible to enforce the withdrawal of the exemption earlier to that date. The present case is distinguishable from the case covered by the judgment of Madras High Court inasmuch as there is no material in the present case to show that the Government Order dated 27-10-1980 was not made available to public prior to 1-11-1980 which was the date of effect of that order. The other three judgments, namely AIR 1979 SC 888′, AIR 1951 SC 467 and 1976 (37) STC 314 are not relevant to the point raised by the learned advocate. In the case reported in AIR 1979 SC 888 (State of Madhya Pradesh and another etc. v. Ram Ragubir Prasad Agarwal and Ors.), the Hon’ble Supreme Court held that publication of the syllabus must precede the prescription of text books or their preparation. In AIR 1951 SC 467 (Harla v. The State of Rajasthan), the Hon’ble Supreme Court held that any law, rule or regulation could not come into force without publication in the Gazette. In 1976(37)-STC-314 (Andhra Pradesh) (The Yemmiganur Spinning Mills Ltd. and Another v. State of Andhra Pradesh and Ors.), the Hon’ble Andhra Pradesh High Court held that the Notification withdrawing the exemption from sales tax was effective from the date of its publication in the Gazette.
6. In view of the foregoing discussions, the appeal filed before us has no merits and consequently, the same is dismissed.