TMI Blog2018 (10) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT OF INDIA] and in Kolhapur Canesugar Works Ltd. [2000 (2) TMI 823 - SUPREME COURT OF INDIA], to the extent that Section 6 of the General Clauses Act applies only in respect of a repeal and not to omission of an enactment is an obiter dicta, which is not binding. Secondly, it also cannot be said that the repeal of an enactment does not include the omission and to that extent, the law that is applicable to the repeal of an enactment would also be applicable to that of an omission and no distinction can be made between the two. Thirdly, the proposition as regards inapplicability of Section 6 of the General Clauses Act in respect of an omission of an enactment resulting in an impermissibility to continue further a proceeding that had been initiated under omitted enactment, merely based upon the proposition laid down in Rayala Corporaion (P) Ltd. and in Kolhapur Canesugar Works Ltd. would also have to be looked from the perspective of the provisions of Section 6-A of the General Clauses Act. It is the contention of Mr. KN Choudhury, learned Senior counsel that the pronouncement in Rayala and Kolhapur being a decision by the Constitution Bench would prevail over the pronouncement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry, verification etc., that were made/to be made under Chapter V of the Finance Act of 1994. The writ petition to be devoid of any merit and the relief sought for interfering with the demand-cum-show cause notices of various dates issued by the Assistant Commissioner Central Goods and Service Tax of the different districts would have to stand rejected - petition dismissed. - Case No. : WP(C) 2059/2018, WP(C) 1868/2018, WP(C) 7729/2017 - - - Dated:- 12-10-2018 - Mr. Justice Achintya Malla Bujor Barua For the Petitioner : Mr. A K Gupta, Mr. S Chetia And Mr.M L Gope For the Respondent : Asstt. S.G.I., Asstt.S.G.I. And Mr. B Sarma JUDGMENT ORDER (ORAL) Heard Mr. K.N. Choudhury, learned senior counsel for the petitioners. Also heard Mr. S.C. Keyal, learned ASGI for the respondent authorities. 2. In all the writ petitions, the demand-cum- show cause notices of various dates issued by the Assistant Commissioner, Central Goods and Service Tax of the district of Dibrugarh and Guwahati respectively are assailed. The said demand-cum-show cause notices are purportedly issued under Sections 75, 76 and 78 in respect of a proceeding initiated under Section 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the following provisions as laid down by the Supreme Court in the referred decisions: (i). Paragraph-17 and 18 of Messrs Rayala Corporation (P) Ltd (supra): 17. Reference was next made to a decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Hiralal Sutwala (1), but, there again, the accused was sought to be prosecuted for 'an offence punishable under an Act on the repeal of which section 6 of the General Clauses Act had been made applicable. In the case before us, s. 6 of the General Clauses Act cannot obviously apply on the omission of R. 132A of the D.I.Rs. for the two obvious reasons that s. 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule. If s. 6 of the General Clauses Act had been applied no doubt this complaint 'against the two accused for the offence punishable under R. 132A of the D.I.Rs. could have been instituted even after the repeal of that rule. 18.The last case relied upon is 1. K. Gas Plant Manufacturing Co., (Rampur) Ltd. and Others v. The King Emperor(2). In that case, the Federal Court had to deal with the effect of sub-s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) paragraph-37 of Kolhapur Canesugar Works Ltd. (supra): 37.The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions Section 6(1) . If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is ] introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal]. 8. Mr. Keyal, learned Assistant SGI also relies upon the proposition of law laid down by the Supreme Court in paragraphs 31, 32, 33, 34, and 35 of the decision in Fibre Board Pvt. Ltd Vs. Commissioner of Income Tax, Bangalore reported in (2015) 10 SCC 333 (supra) which is as under: 31. First and foremost, it will be noticed that two reasons were given in Royala corpn. (P) Ltd. for distinguishing the Madhya Pradesh High Court judgment. Ordinarily, both reasons would form the ratio decidendi for the said decision and both reasons would be binding upon us. But we find that once it is held that Section 6 of the General Clauses Act would itself not apply to a rule which is subordinate legislation as it applies only to a Central Act or Regulation, it would be wholly unnecessary to state that on a construction of the word repeal in Section 6 of the General Clauses Act, omissions made by the legislature would not be included. Assume, on the other hand, that the Constitution Bench had given two reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form that differs in the two cases and there is no difference in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal . 12 IN Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232 : (1975) 3 SCR p.834, Krishna Iyer, J., succinctly laid down what is meant by the per incuriam principle. He stated: (SCC p. 235, para 7 : SCR p. 837) 7. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have sway of binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons that Section 6 applies only in respect of repeals and not omissions and it applies when the repeal is of a Central Act or Regulation and not that of a Rule. Reliance has also been placed upon paragraph 18 of Rayala Corporaion (P) Ltd (supra), wherein a conclusion of the Allahabad High Court in the case of Seth Jugmendar Das and Others is referred to the effect that Section 6 of the General Clauses Act applies only to a repealed statute and not to expiring statues and that the general rules with regard to expiry of a temporary statute is that unless it contains some special provisions to the contrary after the temporary Act has expired, no proceedings can be taken upon it and it ceases to have any further effect. 10. From the aforesaid propositions made in paragraph 17 of Rayala Corporaion (P) Ltd (supra) it is discernible that Section 6 of the General Clauses Act does not apply to a Rule but applies only to a Central Act or Regulation and secondly, Section 6 itself would apply only to a repeal and not to an omission. 11. In paragraph 37 of the pronouncement in Kolhapur Canesugar Works Ltd. (supra), it has been held that the normal effect of repealing a statue or deleting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to state that on a construction of the word repeal in Section 6 of the General Clauses Act, omission made by the legislator would not be included. In paragraph 31 of Fibre Board Pvt. Ltd. (supra) it was also held that both the reasons stated in Rayala Corporaion (P) Ltd (supra) that Section 6 of the General Clauses Act does not apply to a Rule but only apply to a Central Act or Regulation and that Section 6 itself would apply only to a repeal and not to omission would have been considered as a ratio decidendi, but once it was found that Section 6 itself would not apply, therefore, it would be superfluous to state that the interpretation of the word repeal would not include an omission. Accordingly, the Supreme Court was of the view that the second reasoning in Rayala Corporaion (P) Ltd (supra) that Section 6 of the General Clauses Act would apply only to a repeal and not to an omission would not be ratio decidendi at all and that it really is in the nature of an obiter dicta. 16. In paragraph 32 of Fibre Board Pvt. Ltd (supra) the Supreme Court also took note of the provisions of Section 6-A of the General Clauses Act which provides that where any Central Act or Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he omitted enactment on its own does not come to an end upon omission and further continuance cannot be said to be impermissible under the law. A contention has been raised by Mr. KN Choudhury, learned Senior Counsel for the petitioners by relying upon the pronouncement of the Supreme Court in State of Uttar Pradesh Vs. Ram Chandra Trivedi reported in (1976) 4 SCC 32 wherein in paragraph 22, it has been held as: It is also to be borne in mind that even in cases where a High Court finds in conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger bench. 20. Accordingly it is the contention of Mr. KN Choudhury, learned Senior counsel that the pronouncement in Rayala and Kolhapur being a decision by the Constitution Bench would prevail over the pronouncement in FibreBoard Pvt. Ltd.(supra). The said contention of the learned Senior Counsel for the petitioner would have to be looked into from the point of view as to whether the decision rendered in FibreBoard Pvt. Ltd. is a decision which is in conflict with the view expressed in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra) and it is not a case where a contrary view had been taken by remaining oblivious to the proposition laid down in Rayala Corporation (P) Ltd (supra) and in Kolhapur Canesugar Works Ltd. (supra). The view expressed in Fibre Board Pvt. Ltd., (supra) are also views under Article 141 of the Constitution of India and are binding on the High Court. 26. But be that as it may, in the alternative, it is also taken note of that in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra), upon which the petitioner relies upon to substantiate that in case of the omission of an enactment, further proceeding initiated under the omitted Act is no longer sustainable it has been provided that if a provision of a statute is unconditionally omitted without a saving clause in favour of a pending proceeding, all actions must stop, where the omission finds them and if the final relief was not granted before the omission went into effect, it cannot be granted afterwards. 27. But in paragraph 37, it was further provided that the operation of repeal or deletion as to the future and the past largely depend upon the savings applicable. It al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aph 17 of Rayala Corporation (P) Ltd (supra). Even if it is taken to be a conflict, but the decision having been rendered by a Bench of equal strength, the proposition that is more appealing is to be taken into consideration. The proposition in paragraph 37 of Kolhapur Canesugar Works Ltd. (supra) providing that the proceedings under an omitted enactment continues to remain in the event of there being a savings clause in the enactment bringing about such omission appears to be more appealing that the proposition in Rayala Corporation (P) Ltd (supra) providing for a discontinuance of such proceeding. 31. As the provisions of Section 174(2) also is clearly applicable in respect of an omission of the enactment under Section 173, therefore, any such investigation, enquiry, etc., that was instituted, continued or enforced under Chapter V of the Finance Act of 1994, continues to remain in place inspite of such omission of Chapter V of the Finance Act. In other words, Section 174(2)(e) is a savings clause in respect of any investigation, enquiry etc., that was/to be instituted under Chapter V of the Finance Act of 1994. A conjoint reading of Section 173 and 174(2)(e) would show that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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