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TMI Blog1985 (8) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... issued to the parties in the other appeals also to make submissions, if deemed fit, in the present hearing. On the date fixed the Collector was represented by Shri Vineet Ohri, Senior Departmental Representative and the respondents, M/s. National Jute Manufactures Corporation Ltd. were represented by Shri R. Das, Senior Advocate along with Shri Ashim Kumar Ghost, Advocate, assisted by Shri B. Bandyopadhyay, Assistant Manager (Legal) of the respondents. None others appeared during this hearing. 2. Clause 3 of the Jute Manufactures Cess Rules, 1976 reads as follows:- Save as otherwise provided in these rules the provisions of the Central Excises and Salt Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refund of duty shall, so far as may be, apply in relation to the levy and collection of the cess as they apply in relation to the levy and collection of the duty of Excise on jute manufactures under that Act. 3. The contention for the respondents is that the above is an instance of legislation by incorporation and that it is the provisions of the Central Excises and Salt Act and the rules made thereunder that were in force in 1976 that were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1975 SC 1835). 6. So far as the distinction between legislation by incorporation and legislation by reference is concerned, it has been observed by the Supreme Court in Bagya v. Gopikabai (AIR 1978 SC 793) in paragraph 27 as follows: Broadly speaking, legislation by referential incorporation falls in two categories: First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus: A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s specific reference to specific provisions of the incorporated statute. It was in these circumstances that the Privy Council held that the provisions in the incorporated Act as they stood on the date of incorporation would alone apply and not as they may stand amended from time to time. 10. Similarly in AIR 1979 SC 798 it was pointed out that specific reference was made to the provisions of Section 100 of the Civil Procedure Code in Section 55 of the Monopolies and Restrictive Trade Practices Act. It had been provided that any person aggrieved by an order made by the Commission under Section 13 may prefer an appeal to the Supreme Court on one or more of the grounds specified in Section 100 of the Code of Civil Procedure, Act V of 1908. The Supreme Court held that in view of specific reference to the particular provision in the Civil Procedure Code (Section 100) it is only the provisions of Section 100 Criminal Procedure Code as they stood on the date of incorporation that would apply in construing the ambit of the proceedings under Section 55 of the Monopolies and Restrictive Trade Practices Act. Thus both the decisions relied on by Shri Das related to legislation by incorporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 15. Shri Ohri contends that the two enactments are in pari materia as also supplemental to each other and exceptions (a) and (b) would apply. In Craies On Statute Law (7th Edition) it is stated in page 134, as follows: In the American case of United Society vs. Eagle Bank, Hosmer J. said : Statutes are in pari materia which relate to the same person or thing, or to the same class of persons or things. The word par must not be confounded with the word similis. It is used in opposition to it, as in the expression magis pares sunt quam similies, intimating not likeness merely, but identity. It is a phrase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if an appeal is to be filed before an Appellate Collector (as required under the earlier provisions) there will be no such officer available, after the amendment for receiving the appeal. Therefore the present appears to be a case where exception (c) enunciated by the Supreme Court would also apply. 18. Therefore, following the decision of the Supreme Court in AIR 1975 S.C.1835 it has to be held that even if the provisions under Rule 3 of the Jute Manufactures Cess Rules are to be construed as an instance of legislation by incorporation, the exceptions would apply and, therefore, the provisions of the Act as amended would have to be applied. In that event the present appeals would be maintainable before us. 19. Shri Das, no doubt, raised a further contention that even if the appeals are maintainable before the Tribunal, the appeals should be heard by a Regional Bench only and not by a Special Bench as a question as to rate of duty or value for purpose of assessment is involved. But as the present hearing was confined only to the question of the maintainability of the appeals before the Tribunal, no decision is taken on this point at present. 20. As earlier mentioned, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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