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TMI Blog1986 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi was issued by the Government of India beyond six months of the order proposed to be revised. In appeal No. 366/78-B-I the show cause notice dated 24-3-1979 was issued by the Government of India proposing to review the order-in-appeal No. 424-CE/78 dated 1-6-1978 passed by the Appellate Collector of Central Excise, New Delhi. In appeal No. 358/78-B the show cause notice dated 15-11-1978 proposing to review the Order-in-Appeal No. 2427 and 2428-CE/77 dated 9-12-1977 passed by the Appellate Collector of Central Excise, New Delhi was issued after the period of six months. On the date of issue of the show cause notices, Section 11A of the Central Excises and Salt Act, 1944 had been passed into law, although it came into force on 17-11-1980. The third proviso to Section 36 which is analogous to sub-section (3)(b) of Section 35A made reference to time-limit stated in Section 11A. Section 35A(3)(b) made similar reference to the time-limit in Section 11A. 3. In 1984 ECR 1527 and 1984 (15) E.L.T. 157 the Tribunal has held that the mere fact that Section 11A had not come into force would not bar application of the time-limit specified therein for the purpose of Section 35A(3)(b). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under Section 35 or Section 35A of this Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit: Provided that no decision or order shall be varied so as to prejudicially affect any person unless such person is given a reasonable opportunity of making a representation and, if he so desires, of being heard in his defence : Provided further that no proceedings shall be commenced under this sub-section in respect of any decision or order (whether such decision or order has been passed before or after the coming into force of this sub-section) after the expiration of a period of one year from the date of such decision or order." This section was amended by Act XXV of 1978 dated 6-6-1978 as follows :- "24 Amendment of Section 36. - In Section 36 of the Central Excises and Salt Act, - (a) after sub-section (1), the following sub-section shall be inserted, namely :- "(1A) Every application under sub-section (1) shall be accompanied by a fee of rupees one hundred and twenty-five." (b) in sub-section (2), after the second proviso, the following further proviso shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amendment to Section 36 mentioned above should come into force. But in respect of Section 11A Notification No. 182/80-C.E., dated 16-11-1980 appointed 17-11-1980 as the date on which the new provisions of Sections 11A and 11B should come into force. 7. It follows from the above narration that if the time-limit specified in Section 11A, that is, period of six months, is taken as indicating only the period within which the show cause notice should be issued then certain consequences would follow. Per contra, if one has to hold that Section 11A had not come into force on 1-7-1978, a different period of limitation then set out in Section 11A would be applicable. Mrs. V. Zutshi, SDR argued that Section 11A had not come into force on the date of the review notices and hence the limit specified in that section should not be incorporated by reference. According to her, the decision in 1981 (8) E.L.T. 421 (Associated Cement Co. Ltd. v. U.O.I.) would not apply to the facts of the case, because it did not specifically deal with the question that Section 11A had come into force only on 17-11-1980. She relied on the decision reported in 1982 (10) E.L.T. 112 (Patel Prabhudas Purushottam Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot ignore a statutory provision 'to relieve what it considers a distress resulting from its operation; a statute has to be given effect to whether the court likes it or not'." 10. In AIR 1964 SC 207 [South India Corporation (P.) Ltd. v. Secretary, Board of Revenue, Trivandrum and Another] the question arose about the validity of the provisions of the Travancore-Cochin General Sales Tax Act which was published in the Gazette on 17-1-1950, but the provisions were brought into force only on 30-5-1960, that is, after the commencement of the Constitution. It was held that the tax under that Act would not be saved, as the necessary condition that the levy should have been lawfully made before the Constitution was not satisfied. 11. In The Commissioner of Income-tax, Bombay City 1 v. Godavari Sugar Mills Ltd. - AIR 1967 SC 556, the reason for enacting Section 6 of the General Clauses Act has been described as following the earlier decision in State of Punjab v. Mohar Singh - AIR 1955 SC 84 at p. 87 : (1955) 1 SCR 893 at p. 897) :- "Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel urged that the provisions of Act 25 of 1978 had been enacted on 6-6-1978, but giving effect to these provisions alone got postponed. The time-limit specified in Section 11A should be read into the proviso (3) of Section 36(2) as it is legislation by incorporation. Any other interpretation would result in a situation, in that proviso (3) to Section 36(2) which had been passed by the legislature and had been brought into force on or about 1-7-1978 would be rendered inoperative for nearly two years, that is, till Section 11A had come into force. Such a construction would render the legislative exercise otiose and has to be avoided. 14. He contended that the nature of incorporation by reference is to read the incorporated provisions in the statute and any modification or repeal of the same has no effect on the statute in which they are incorporated. He cited the passage of Lord Dunedin [PRINCIPLES OF STATUTORY INTERPRETATION by G.P. Singh (Page 32)] as follows :- "It is our duty to make what we can of statutes, knowing that they are meant to be operative, and not inept, and nothing short of impossibility should in my judgment allow a judge to declare a statute unworka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in another without incorporation, then unless a different intention clearly appeared, Section 8(1) of the General Clauses Act, 1897 would apply and a reference would be construed as a reference to the provisions, as may be enforced from time to time in the former statute. But if a provision of one statute is incorporated in another any subsequent amendment in the former statute and even the total repeal would not affect the provisions as incorporated in the latter statute. 18. In 1985 (21) E.L.T. 607 (Tribunal) (B. Rajendra Oil Mills v. C.C.E., Madras), the Tribunal by a majority judgment held that the provisions of the Central Excises and Salt Act, 1944 or the Customs Act, 1962 have been bodily lifted and put in the Produce Cess Act, but it was a case where the provisions of the earlier Acts like Customs Act and Central Excises Act have been made available for certain purposes. 19. In AIR 1975 SC 1389 (Krishna Chandra Gangopadhyaya, etc. v. The Union of India and Others) the question canvassed was, "Whether the Amending Act in question has been an exercise in futility because of an unconstitutional essay and foggy drafting or has achieved the purpose set by Parliament whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harat Earth Movers Ltd.) 24. On the second issue regarding the binding effect of the Delhi High Court judgments, Mrs. Zutshi, SDR urged that since different High Courts have taken different views it was open to the Tribunal to follow any decision. Quoting from the case of Atma Steel reported in 1984 (17) E.L.T. 331 decided by the Tribunal Mrs. Zutshi, SDR urged that since the different High Courts have taken contrary views, the Tribunal can come to its own conclusion after considering the ratio of both the judgments. She urged that provision has been made for appeals to the Supreme Court direct in respect of matters relating to determination of duty and valuation. She made a reference to the High Court rules and contended that no rules have been framed thereunder qua the Tribunal as in the case of other special enactments. The rules of the High Court do not prescribe any such rules in respect of the proceedings before this Tribunal. 25. Shri Soli Sorabji, on the other hand, urged that the power of superintendence given to the High Courts under article 227 of the Constitution extended to all quasi judicial bodies and Tribunals situated within its jurisdiction. Among others (as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Amarnath and Another). It was urged in that case that article 227 conferred no power on the Court of Judicial Commissioner over the Rent Controller or District Judge. But the Supreme Court held that Rent Controller and District Judge exercising jurisdiction under the Act were certainly tribunals, if not court, and they function within the territories of Himachal Pradesh. Therefore, article 227(1) read with article 241 conferred on the Court of the Judicial Commissioner power of superintendence over such tribunals. The words "in relation to which" obviously qualify the word "territories" and not the words "courts and tribunals". 27. AIR 1958 Allahabad 137 (Sita Ram v. K.K. Banerji) was a case under the Representation of People Act, 1951. In that case it was held that the appellate jurisdiction of a High Court did not depend on the place where a cause of action might arise. The appellate jurisdiction depended on the situation of the court or the tribunal from which the appeal is taken to the High Court. In para 8 it is observed that if an election tribunal is situated in a particular state, then, in accordance with articles 225 to 227 of the Constitution, the appellate jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay it has to proceed on the footing that law declared by the High Court, though of another State, is a final law of the land. [1953] 24 ITR 70 (Raja Benoy Kumar Sahas Roy v. C.I.T., West Bengal) and [1954] 26 ITR 424 (Jyotikana Chowdhurani and Others v. Commissioner of Income-Tax, Assam) were also relied on for the same purpose. The Tribunal, according to Shri Sorabji, had no option to disregard the decision of the Delhi High Court which arose in this case and had to follow that ruling despite the view having been dissented from the Bombay High Court. 30. ISSUE :- On the first issue if we look into the third proviso to Section 36(2), it is reasonable to conclude that Section 11A has to be read into the third proviso in Section 36(2). The main aspect which strengthens this view is, from the fact that Act 25 of 1978 was passed by the Parliament which contained not only the amendment to Section 11A of the Central Excises and Salt Act, 1944, (sic) but also the amendment to Section 36. The composite form in which the amendments have been passed indicate that it was the intention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the date of the amendment as 1-7-1978. In that view, the Delhi High Court has taken into account the effect of the amendment under Act 25 of 1978. The Delhi High Court has also considered the import of the doctrine of incorporation. 32. Any doubt in the matter is clarified in the later decision 1983 (12) E.L.T. 711 (All.) (Triveni Sheet Glass Works Ltd. v. UOI) the Division Bench of the Allahabad High Court in para 17 have directly spoken on the two provisions coming into force on two different dates and have observed as follows : "We are also not impressed by the submission that as the provisions of Section 11A were enforced only with effect from 17th of November, 1980 the third proviso to Section 36(2) added by Act No. 25 of 1978 did not become operative till 17th of November, 1980. However, we find considerable force in the submission of the learned counsel for the respondents that the instant case is not governed by the proviso to Section 36(2) as added by Act No. 25 of 1978." This judgment was delivered on 25-2-1981. This judgment appears to have been not placed before Hon'ble Bombay High Court. 33. We also notice that another Division Bench of Bombay High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 389 (Krishna Chandra Gangopadhyaya, etc. v. The Union of India and Others) such an effect of drafting is referred to as "a convenient shorthand, as against a long hand writing of all the sections". It should have been easy for the legislature to incorporate the identical words in respect of the time-limit in Section 11A. Since Section 11A was numerically anterior to Section 36, it would have been a mere repetition or verbatim reproduction of the same words in Section 36(2). As it is a normal drafting process, it was not considered necessary or essential to repeat the same words once again in the proviso to Section 36(2). 38. Craies on Statute Law (7th Edition) has referred to such a rule of construction and has said that the incorporated provisions become part of the second statute. 39. In view of the above analysis and if we bear the cardinal principles of avoiding repugnance and inconsistencies in mind, we must hold that the special period prescribed in Section 11A would apply to review show cause notices issued under the third proviso to Section 36(2) even if Section 11A had not been brought into force. 40. On the second question, though detailed arguments were advanced on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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