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TMI BlogINTERPRETATION OF PROVISOX X X X Extracts X X X X X X X X Extracts X X X X ..... INTERPRETATION OF PROVISO - By: - Mr. M. GOVINDARAJAN - Central Excise - Dated:- 26-8-2015 - - A proviso is added to a principal clause primarily with the object of taking out of the scope of their principal clause what is included in it and what the Legislature desires to be excluded. The proper function of the proviso is to qualify something enacted in the substantive clause, which but for the proviso would be within that clause unless the context, setting and purpose of the provision warrants a different construction. It is a cardinal rule of interpretation, that a proviso to a particular provision of a statute only embraces the field that is covered by the main provision to which it has been enacted as a proviso and to no other. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that ordinarily a proviso is designed to restrict rather than to enlarge the provision to which it is appended but this is not an inflexible rule and there are cases in which the language might well lead one to the conclusion that the legislature intended to exercise its enacting power. If after a careful examination of the proviso, the provision to which it is attached, and the act as a whole, the court comes to the conclusion that the legislature intended to create a liability, it is the duty of the court to give effect to the intention even though it is embodied in a proviso. A proviso is subsidiary to the main section and it must be construed in the light of the section itself. The object of the proviso, as it has so oft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en been stated, is to carve out from the main section a class or category to which the main section does not apply. But in carving out from the main section one must always bear in mind what is the class referred to in the main section and must also remember that the carving out intended by the proviso is from the particular class dealt with by the main section and from no other class. The question arose whether the proviso in the Act under consideration was a limiting provision to the main provision or was a substantive provision in itself. The court observed that so far as a general principal of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to limit the main part of the section an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d carve out something which but for the proviso would have been within the operative part. But it was further observed that the proviso in that particular case was really not a proviso in the accepted sense but an independent legislative provision by which a remedy which was prohibited by the main part of the section, an alternative, was provided Hon ble Supreme Court in the case of Commissioner of Commercial Taxes Vs. R.S. Jhaver (1967 (8) TMI 37 - SUPREME Court) has observed that in exceptional circumstances a proviso may not really be a proviso in the accepted sense but may be a substantive provision itself. In Hindustan Ideal Insurance Co. Limited V. Life Insurance Corporation Limited 1963 (4) TMI 75 - SUPREME COURT it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that there is no doubt that where the main provision is clear, its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be a surplus age, can properly be looked into to ascertain the meaning and scope of the main provision. Justice G.P. Singh, in Principles of Statutory Interpretation, 8 th Edition, 2001 indicated that since the natural presumption is that but for the proviso, the enacting part of the section would have included the subject matter of the proviso, the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and the construction which would make the exceptions unnecessary and redundant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be avoided. Lord Herschel stated that a proviso may be used to guide one in the selection of one or other of two possible constructions of the words to be found in the enactment and show when there is doubt about its scope, when it may reasonably admit of doubt as to have this scope or that. In Indo-Nippon Chemicals Co. Limited V. Union of India 2002 (2) TMI 136 - GUJARAT HIGH COURT the High Court held that the normal functions of a proviso is to except something out of the enactment or to qualify something enacted therein which, but for the proviso, would be within the purview of the enactment. To this real nature of proviso is also another principle of interpretation that the proper function of a proviso is that it qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alified the generality of the main enactment by providing an exception. Ordinarily, it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. Proviso can be taken aid of as useful guide to construction of the main enactment. If the enacting portion of a section is not clear a proviso appended to it may given an indication as to its true meaning. In Poly Fill Sacks V. Union of India 2005 (2) TMI 148 - GUJARAT HIGH COURT while dealing with Section 35C (2A) of the Central Excise Act, 1944 , the Court held that the scheme is that an appeal is required to be disposed of within a period of three years from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing, but where stay is granted by the Tribunal, the said period of three years stands curtailed to 180 days from the date of the order granting stay. Though, the language employed by the statute appears to be mandatory in nature in terms, considering the object behind the provision it has to be understood to mean as being directory in nature. In other words, disposal of appeal has to be within the specified period, three years or 180 days, where it is possible to do so. What meaning does one ascribe the phrase where it is possible to do so , if the contention of the Revenue is required to be upheld. If the second proviso is read in isolation in the interpretation canvassed by Revenue may appear to be correct. But one cannot loos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sight of the legal position: a proviso carves out an exception to the main rule. The true principal undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together is to prevail - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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