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TMI Blog1991 (7) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act, by any hotel, restaurant, sweet-stall or any other eating house other than those classified or approved by the Department of Tourism, Government of India." 3.. Subsequently on March 25, 1989, G.O. P. No. 198 was issued, which reads as follows: "No. II(1)/CTRE/37(c)/189-In exercise of the powers conferred by subsections (1) and (3) of section 17 of the Tamil Nadu General Sales Tax Act, 1959 (Tamil Nadu Act 1 of 1959), the Governor of Tamil Nadu in supersession of the Commercial Taxes and Religious Endowments Department Notification No. II(1)/CTRE/46(a-16)/87, dated the 20th March, 1987, published at page 13, in Part II, Section 1 of the Tamil Nadu Government Gazette, Extraordinary, dated the 20th March, 1987; and in supersession of the Commercial Taxes and Religious Endowments Department Notification No. II(1)/CTRE/70/87, dated the 10th June, 1987, published at page 46 in Part II, Section 1 of the Tamil Nadu Government Gazette, dated the 24th June, 1987, hereby makes an exemption in respect of the tax payable on the sale of food and drinks other than those falling under the First Schedule to the said Act, by any hotel, restaurant, sweet-stall or any other eating hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted March 25, 1989 was issued, whereunder the exemption was restricted to hotels and restaurants, with an annual turnover not exceeding Rs. 10,00,000. The learned counsel would contend that it was only for the first time after G.O. P. No. 198 dated March 25, 1989 was issued, the sale of food and drinks became assessable under the Act. Even though G.O. P. No. 198 dated March 25, 1989 might have undergone amendments by raising the limit from Rs. 10,00,000 to Rs. 15,00,000 and once again to Rs. 18,25,000, the fact remains that only by virtue of G.O. P. No. 198 dated March 25, 1989, the liability to pay tax in respect of transactions in hotels and restaurants came to be enforced. He would stress the phraseology employed in G.O. P. No. 198 dated March 25, 1989, whereunder G.O. P. No. 570 dated June 10, 1987 was ordered to be superseded. 4.. The first contention of the learned counsel is that when G.O. P. No. 532 dated September 5, 1990 was issued and when by that Notification G.O. P. No. 198 dated March 25, 1989 was ordered to be cancelled, then, the gamut of the entire Notification in G.O. P. No. 198 dated March 25, 1989 came to be obliterated on and from September 5, 1990. In other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the 1952-rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid. The carry forward rule of 1952 was substituted by the carry forward rule of 1955. On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus by promulgating the new carry forward rule in 1955, the Government of India itself cancelled the carry forward rule of 1952. When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist, because the Government of India itself cancelled it and had substituted a modified rule in 1955 in its place, could revive. We are therefore of opinion that after the judgment of this Court in Devadasan's case AIR 1964 SC 179, there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule of 1955, in its place. But it must be made clear that the judgment of this Court in Devadasan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier 1119 order also invalid, even though 1950 order is only replacement of 1119 order. It was held that 1119 order has not suffered from any infirmity and merely because 1950 order suffer from infirmities, it would not have the effect of declaring the 1119 order also non est. 7.. The next decision referred to by the petitioner is the decision in State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd. [1977] 39 STC 340 (SC); AIR 1977 SC 879. The facts of this case were that Explanation II to section 2(g) of the Central Provinces and Berar Sales Tax Act was amended by Act 16 of 1949 and if it were to be held that the amendment was ineffective, whether the unamended law could be applied at all after the purported amendment. The Supreme Court has observed as follows: "In the case before us, although the word 'substitution' is used in the amending Act, yet, the whole legislative process termed substitution was itself abortive. The whole of that process did not take effect as the assent of the Governor-General, required by section 107, Government of India Act, was lacking. Such ineffectiveness was the very reason why, in the case of Shriram Gulabdas [1952] 3 STC 343 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1981 was issued in supersession of the notification dated July 15, 1977 and thereby it achieved two objects-the notification dated July 15, 1977 came to be repealed and 10 per cent ad valorem customs duty was imposed on newsprint. Since the notification dated July 15, 1977 had been repealed by the Government of India itself it cannot be revived on the quashing of the notification of March 1, 1981. The effect of such quashing of a subsequent notification on an earlier notification in whose place the subsequent notification was issued has been considered by this Court in B.N. Tewari v. Union of India [1965] 2 SCR 421; AIR 1965 SC 1430. In that case the facts were these: In 1952 a 'carry forward' rule governing the Central services was introduced whereby the unfilled reserved vacancies of a particular year would be carried forward for one year only. In 1955 the above rule was substituted by another providing that the unfilled reserved vacancies of a particular year would be carried forward for two years. In T. Devadasan v. Union of India [1964] 4 SCR 680; AIR 1964 SC 179 the 1955 rule was declared unconstitutional. One of the questions which arose for consideration in this case Tewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to have never been modified or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on the striking down of a later law which purported to modify or repeal the earlier one. It was a case where the earlier law had not been either modified or repealed effectively. The decision of this Court in Mulchand Odhavji v. Rajkot Borough Municipality AIR 1970 SC 685 is also distinguishable. In that case the State Government had been empowered by section 3 of the Saurashtra Terminal Tax and Octroi Ordinance (47 of 1949) to impose octroi duty in towns and cities specified in Schedule I thereof and section 4 authorised the Government to make rules for the imposition and collection of octroi duty. These Rules were to be in force until the city municipalities made their own rules. The rules framed by the municipality concerned were held to be inoperative. Then the question arose whether the rule of the Government continued to be in force. The court held: "The Government rules, however, were to cease to operate as the notification provided "from the date the said Municipality put into force the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssent of the Governor-General and the court distinguished that case from Tewari's case AIR 1965 SC 1430. We may also state that the legal effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like, 'substitution' or 'supersession'. It depends upon the totality of circumstances and the context in which they are used." 9.. The above decision is a clear authority for the proposition that if a notification is superseded by a later notification and if the later notification came to be quashed, which in law, would mean that the later notification had never existed, it would not have the effect of reviving the notification, which by the later notification was superseded. 9A. The later Notification G.O. P. No. 198 dated March 25, 1989 had not been quashed by any competent court; nor has it been held that it is without jurisdiction. The Government itself has chosen to cancel G.O. P. No. 198 dated March 25, 1989 to have with prospective effect. Under these circumstances, it cannot be contended that by cancellation G.O. P. No. 198 dated March 25, 1989, there is an automatic revival of G.O. P. No. 570 dated June 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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