9911796707
TMI Blog1977 (8) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... above constitutional provision, the Central Sales Tax Act, 1956, was passed by Parliament. Section 14 declared goods of special importance in inter-State trade or commerce. Sub-clause (iia) of the said section is: "Cotton fabrics, as defined in item No. 19 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944)." And item 19 of the First Schedule to the Central Excises and Salt Act, 1944, in so far as it is material, read: "'Cotton fabrics' mean all varieties of fabrics manufactured either wholly or partly from cotton, and include dhoties, sarees, chadras, bed-sheets, bed-spreads, counter-panes and table-cloths, but do not include any such fabric......................" This was the definition till it was amended by the Finance Act of 1969. The amended definition (to notice only its relevant portion) reads: "19. Cotton fabrics- 'Cotton fabrics' means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties, sarees, chadders, bedsheets, bed-spreads, counter-panes, table-cloths, embroidery in the piece, in strips or in motifs and fabrics impregnated or coated with preparations of cellulose derivatives or of other arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 5A of the Kerala General Sales Tax Act. The said section exempted the dealer of mill-made textiles, tobacco and sugar from taxation under section 3(1) of the General Sales Tax Act. When the General Sales Tax Act of Here italicised. 1125 M.E. was repealed and replaced by the Kerala General Sales Tax Act, 1963, section 9 of the Act conferred the exemption in respect of goods specified in the Third Schedule. Item 7 of the said schedule is as follows: "Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in items Nos. 19, 21 and 22 respectively of the First Schedule to the Central Excises and Salt Act, 1944." Under the Kerala General Sales Tax Act, 1963, unlike in the Act of 1125, the definition of "cotton fabrics", etc., is geared directly to the First Schedule to the Central Excises and Salt Act, 1944. 3.. Counsel for the petitioner contended that the words "as defined in the Central Excises and Salt Act, 1944" in item 7 of the Third Schedule to the Sales Tax Act are words of "reference" or "citation" and not words of "incorporation". He placed the strongest reliance on the decision of the Privy Council in Secretary of State v. Hindustan Co-operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on appeal from an award. The Judicial Committee observed: "Having regard to the provisions of section 71 of the local Act, above referred to, under which the Tribunal is not deemed to be the 'court' for the purposes of section 54, Land Acquisition Act, it is, their Lordships think, clear that the amendment of section 54 cannot assist the contention presented to them on behalf of the Secretary of State. For even if the borrowing by the local Act in 1911 from the Land Acquisition Act could be held to include the new section 54, an award of the Tribunal would not, by the express words of the local Act, come within its provisions." The Judicial Committee observed that there were more cogent objections to the maintainability of the appeal. Their Lordships were not prepared to accept the amendment made to section 26(2) of the Land Acquisition Act as conferring a right of appeal. It was observed: "It was not part of the Land Acquisition Act when the local Act was passed, nor in adopting the provisions of the Land Acquisition Act, is there anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to that Act. It is at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was whether section 178A introduced in the Sea Customs Act by a subsequent amendment, can be relied on for the purposes of the Foreign Exchange Regulation Act which had incorporated the Customs Act at a time before the introduction of section 178A by amendment. The Foreign Exchange Regulation Act, brought into force on 25th March, 1947, provided by section 23A, introduced by an amendment in 1952, that the restrictions imposed by certain specified provisions of the Act. "shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly..." Section 19 of the Sea Customs Act enacted: "19. The Central Government may from time to time, by notification in the official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government." Section 178A was introduced in the Sea Customs Act, 1878, by the amending Act 21 of 1955. It provided that where any goods are seized in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." In the light of the principles thus stated, the Supreme Court took the view in Nathella Sampathu Chetty's caseA.I.R. 1962 S.C. 316., that on the language of section 19 of the Sea Customs Act and section 23A of the Foreign Exchange Regulation Act there was no scope for the argument that there was any incorporation of the provisions of the earlier Act into the later one. It was pointed out that the effect of section 23A is to treat the notification by the Central Government under section 8(1) as if it had been issued under section 19 of the Sea Customs Act, by the creation of a legal fiction. The reference in section 23A to section 19 of the Sea Customs Act cannot have the effect of incorporating the relevant provisions of the earlier Act into the Act of 1947. 5.. Based on the above two decisions, the counsel for the petitioner maintained that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III to the Act. Counsel for the petitioner invited our attention to the Madras Act 37 of 1974, which amended the Madras Statute in consequence of this decision. He further stressed that the principles stated by the Madras High Court that loss of identity, or different use of the article, or change in the properties and characteristics, has not been accepted as the correct test for deciding the question by the Kerala High Court in Kesavan Co. v. Assistant Commissioner of Sales Tax[1976] 37 S.T.C. 221. It was noticed in that case that "caristrap rayon cord strapping" is made, using practically exclusively, rayon cord by a process by which the cords are pasted together by strong glue, which is resilient and elastic to some extent. Item 22 of the First Schedule to the Central Excises and Salt Act, which is attracted by item 7 in the Third Schedule of the Kerala General Sales Tax Act, 1963, was held to cover different articles made out of rayon. It was pointed out that it will be idle to apply the identity test to find out whether the thing sold is the thing mentioned as item 22 in the schedule. 7.. The Gujarat High Court in Hind Engineering Co., Rajkot v. Commissioner of Sales Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich any prohibition under sub-section (1) apply "shall be deemed to be goods of which the import or export had been prohibited under section 19 of the Sea Customs Act, 1878". It was pointed out that the effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated section of the earlier Act into the subsequent Act as if these provisions have been enacted in it for the first time. In State of M.P. v. M.V. NarasimhanA.I.R. 1975 S.C. 1835., the provision considered was section 2 of the Prevention of Corruption Act, 1947. The said section enacted that for the purposes of the 1947 Act "public servant" means "public servant as defined in section 21 of the Indian Penal Code". Section 21 of the Indian Penal Code, before its amendment by the Criminal Law (Amendment) Act, 1958, consisted of only eleven clauses. These clauses did not take in an employee under a Corporation or a Government company. The same was added by clause 12 introduced by the Amendment Act of 1958, and was substituted by an Amendment Act of 1964. As a result of these two amendments, employees of Government companies and of Corporations were brought within the purview of the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases: (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act." (para 16) 10.. The counsel for the petitioner stated that the words "as defined by the Central Excises and Salt Act, 1944" would not amount to "incorporation", but only to a "reference" or a "citation" as understood in this branch of the law, and as expounded by judicial decisions. We notice that almost the same expression was judicially construed in Ram Sarup's caseA.I.R. 1963 S.C. 553. The same words were also used in section 2 of the Prevention of Corruption Act which was considered in State of M.P. v. M.V. NarasimhanA.I.R. 1975 S.C. 1835. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ystallized by the judicial decisions and been expounded by the leading authorities, let us examine the position. In Ram Sarup's case A.I.R. 1963 S.C. 553., and in State of M.P. v. M.V. NarasimhanA.I.R. 1975 S.C. 1835., the mode chosen by the legislature to express itself was practically the same as we have here, viz., "as defined in the Central Excises and Salt Act". In the earlier case, the question was regarding the survival of what we may call the "built-in" or "embanked" provision after the repeal of the parent statute from which it was "built-in" or "embanked". It was ruled this would make no difference. That is understandable, whether the words be words of incorporation or of reference. In State of M.P. v. M.V. NarasimhanA.I.R. 1975 S.C. 1835., the definition of "public servant" in the Prevention of Corruption Act, 1947, was held to be an incorporated definition, nevertheless, it was ruled that the amendments effected by the subsequent clauses of the Indian Penal Code to the definition of the term would get added to the provisions of the Prevention of Corruption Act as well. While the general principle is that an incorporated or impregnated foetus of the provision, neither gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
