TMI Blog1992 (11) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... on under the said notification. There is no dispute that the brand name/trade name was already embossed at the forging stage before such forgings were received at the appellants unit and there is also no dispute that the appellants were not affixing any brand name/trade name. The adjudicating authority came to the finding that the appellants intended to manufacture the parts embossed with the said trade name and that is the reason why they got that name embossed at the forging stage and it was immaterial whether they affix the trade name themselves or got it affixed by others as the result is the same i.e. the goods are seized from the factory of the appellants with the trade name embossed thereon. He, therefore, held that the goods in question were covered by the embargo on exemption contained in para 7 of the Notification 175/86. The lower appellate authority has given a categorical finding that there is no dispute about the fact that the appellants are getting the goods embossed with the trade name Titwell at the forging stage and they themselves are not affixing this brand name on the goods. However, the Collector (Appeals) has relied on the Mischief Rule to deny the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircuitous manner that which it has prohibited or enjoined : quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. This manner of construction has two aspects. One is that the Courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act. When the Courts find an attempt at concealment, they will, in the words of Wikmot C.J. brush away the cobweb varnish, and show the transactions in their true light." This Rule of Interpretation in fact originated almost 400 years ago in the Heydon s case (1584) 3 Rep. 7 in which it was resolved that that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law four things are to be discerned and considered : (1st). What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischief Rule:- (a) In the case of Mysore State Road Transport Corporation v. Mysore State Transport Appellate Tribunal reported in (1975) 1 SCR 615, the Hon ble Court observed as follows :- The purpose and significance of an enactment is to be found after exploring the shortcomings or the defects which were sought to be removed by means of it by Parliament which does not legislate in vain or without some reason or need for it. And, as all law, including enacted law, is a response to a need which has arisen, we have to examine the situation or the context in which the need for an amendment in it arose by an addition in it or alteration of it in order to appreciate its true meaning. Law, after all, is not static. It changes in response to the growing needs it has to serve so as to advance the public good. (b) In the case of Kanwar Singh v. Delhi Administration reported in AIR 1965 SC 871, the Hon ble Supreme Court s observation in this context inter alia was as follows- It is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving literal meaning to a word used by the draftsman, particularly in a penal statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside already affixed with such brand name or trade name yet if a narrow interpretation is given by going by the plain and dictionary meaning of the expression given in para 7, there would be an obvious judicial error in the light of the fact that the incorporation of para 7 was clearly to suppress a mischief and that very objective would be defeated if a broader interpretation is not given to the words used in this paragraph." Hence this appeal. 2. We have heard Shri J.S. Agarwal, learned Counsel and Shri M.S. Arora, learned DR and carefully considered their submissions. 3. The learned Counsel urges that the benefit of the Notification cannot be denied to the appellants on the ground that the goods are embossed with the trade name/brand name when it is not the appellants who have carried out such affixing. He submits that para 7 makes it clear that exemption will not be available only to the manufacturer who affixes these specified goods with the brand name. He points out that the appellants received rough forgings falling under Chapter 73 and carried out machining and sent the machined auto parts falling under Chapter 87 to consignees who are different from the consignors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for intendment in fiscal legislation. This is the legal position well settled by the decision of the Supreme Court in the case of Hemraj Gordhandas v. H.H. Dave reported in 1978 (2) E.L.T. (J 350). The Tribunal has also followed the same view in a number of decisions viz. Vikrant Tyres v. Collector of Central Excise, Bangalore reported in 1988 (38) E.L.T. 301 wherein it has been held that it is the rule of construction that nothing can be supplied and nothing can be ignored when interpreting a notification. In the case of Indian Iron and Steel Co. Ltd. v. Collector of Central Excise reported in 1990 (46) E.L.T. 409 the Tribunal has reiterated the position that in a taxing Statute there is no room for any intendment but regard must be had to the clear meaning of the words and if the tax payer is within the plain term of an exemption he cannot be denied its benefits by calling in aid any supposed intention of the exemption authority. In the case of Good Year India Ltd. v. Union of India reported in 1990 (49) E.L.T. 39 (Delhi), the Hon ble Delhi High Court has relied upon the judgment of the Hon ble Supreme Court reported in AIR 1979 SC 193 (Chief Justice of Andhra Pradesh v. L.V.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commode, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico." This Rule has been interpreted by the Supreme Court in the case of Commissioner of Income Tax, M.P. v. Smt. Sodra Devi reported in AIR 1957 S.C. 832 to apply only when the words in question are ambiguous and are reasonably capable of more than one meaning. The Court held in para 14 as follows : It is clear that unless there is any ambiguity it would not be open to the Court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of the surrounding circumstances and constitutional principle and practice. The Supreme Court has held in the case of Commissioner of Wealth Tax v. Smt. Hashmalunissa Begam reported in AIR 1989 SC 1024 = 1989 (40) E.L.T. 239 (SC) as follows : The rule of construction that if the statutory provision is susc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any ambiguity or absurdity arises from the original language as actually used in para 7. For the same reason, mischief rule relied upon by the learned adjudicating authority would not apply in this case, as said in extenso by the learned sister in her order. 5.4 There appears to be internal evidence in the Notification 175/86 that the Central Government issuing the notification intended to apply para 7 to those branded goods in respect of which manufacturer affixes the brand name and not in respect of the branded goods on which the manufacturer has not affixed the brand name. One clue is obtained from proviso to para 3 of the said notification which enables exclusion from computation of aggregate value of clearances, the clearances of any excisable goods where a manufacturer affixes the specified goods with a brand name. 6. It is, therefore, apparent that the notification has deliberately used the words referring to the act of the manufacturer with reference to which the exemption is available or not. This is in tune with the general scheme of the notification as well because the exemption has been given to a certain quantity of goods cleared by a manufacturer for home consum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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