There is an important difference between the formulation of policies by the legislature and the creation of subordinate legislation by the executive. The legislature discusses the policies that are widely publicised by the print and visual media. In contrast, delegated or subordinate legislation is often made unobtrusively in the ministries and offices. Thus while transparency and openness are important ingredients in the case ofthe former, the latter often suffers from opaqueness and insulation.

It is for this reason that it is insisted that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner. It is immaterial whether such publication or promulgation is prescribed in the parent statute or not.

Most of the statutes, however, contain specific stipulation for the publication of notifications, regulations, etc issued by the government in the official gazette. To provide an illustration, section 38 of the Central Excise Act, 1944, lays down: "All rules made and notifications issued under this Act (the Central Excise Act) shall be published in the official gazette."

In fiscal statutes, a notification may increase tax liability because of increase in the rate of tax or withdrawal of an exemption. Normally such changes are effective from the date of the notification. Changes in the rates of duties of customs and excise fall in this typical category.

But is it enough that anotification of a particular date is published in the gazette of that date irrespective of when it is actually printed and available to the assessees? Or, can an affected person claim that unless the notification was actually available for his use, no increased liability can be fastened on him. It is an established practice to accept the enforcability of a notification from the date of its publication (as indicated in the gazette) even if it meant paying additional liability for the past period till they actually came to know of it. But once any such fundamental question is raised it is finally settled only by a judgment of the Supreme Court, albeit it may take several years in the process. This is what happened in New Tobacco Company case - 1998 (97) ELT 388 (SC) - that was recently decided. The dispute had started way back in 1982.

Relevant facts are like this. New Tobacco Company manufactures cigarettes of various brands. In 1979, excise duty on cigarettes was payable at the rate fixed by a notificationof March 1, 1979 as amended from time to time. This notification was rescinded on November 30, 1982, by another notification that prescribed new rates of excise duty. The new rates means increase in excise duty for certain categories of cigarettes manufactured by New Tobacco Company. The company continued to pay the excise duty at the old rate. When demand of differential duty was raised by the excise department it took the plea that such demand was enforceable only for the period from December 8, onwards. This is for the reason that the notification was placed for sale to the public on December 8, 1992.

The apex court upheld the contention of New Tobacco Co. The court explained the judicial meaning of `published' by holding that what is essential is not simply publication but when was a notification duly published. "The word `publish' connotes not only an act of printing but also further action of issuing or making it available to the public".

If publication is through a gazette then mere printing of itin 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.

An earlier judgment of the Supreme Court - Punkaj Jain Agencies v. Union of India - 1994 (72 ELT 805 (SC) - gave the impression that a notification is effective from the date of its publication. In that case the appellants imported parts of ball bearings that were subjected to customs duty. One notification issued on February 13, 1986 prescribed the applicable rate of duty for such parts. This notification was published in the official gazette of February 13, 1986. However, the appellant took the plea that it was not available in Bombay, the port of import, till February 19, 1986, and that, therefore, the notification did not acquire the elements of operativeness and enforcability. But the Supreme Court did not accept this contention. In the words of the court: "We, therefore, see no substance in the contention that notwithstandingthe publication in the official gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operativeness and enforcability." The ratio of the judgment in New Tobacco case applies not only to tax related notifications but equally to notifications, regulations, by-laws, etc issued under other central or state laws.