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TMI Blog2023 (4) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... xchange Management (Transfer or issue of security by a person resident outside India) Regulations, 2000 (hereinafter referred to as 'Regulations') and violations under Sections 3(b) & 4 of the Act, 1999, a complaint bearing No. T-3/27/HZO/2011 dated 12.07.2017 was filed before the Directorate of Enforcement (hereinafter referred to as 'ED') under Section 16(3) of the Act, 1999. 4. Pursuant to the said complaint, a show cause notice dated 14.07.2017 was issued to the Petitioners herein who in turn submitted replies to the said show cause notice on 24.08.2021 and 25.08.2021. An oral hearing was conducted by Respondent No. 1 in which the Petitioners participated and submitted their written submissions. Thereafter, the impugned order dated 04.01.2023 was passed. 5. The Petitioners challenge the impugned order, inter alia, on the ground that they were charged under Section 6(3)(b) of the Act, 1999 which was subsequently omitted from the Act, 1999, w.e.f. 15.10.2019. 6. During the stage of admission, a preliminary objection was raised by Respondent No. 1 regarding the maintainability of the present writ petition. It was contended that the Petitioner has an efficacious alternative reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax v. Commercial Steel Limited 2021 SCC OnLine SC 884 held that a writ petition, in presence of an alternative remedy, is maintainable only in exceptional cases. The relevant paragraph is extracted below: 11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. Therefore, to decide the maintainability of the present writ petition, this Court has to decide whether the impugned order was passed without jurisdiction. 12. It is relevant to note that Section 6(3) of the Act, 1999 deals with the power of the Reserve Bank of India to formulate Regulations to regulate, prohibit and restrict capital account transactions. Section 6(3)(b) of the Act, 1999 deals with the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at pending proceedings under an omitted provision are not saved by Section 6 of the Act, 1897 as it is only applicable to repeals and not omissions. This Court does not agree with the contentions raised by the Petitioners for the reasons stated herein below. 16. It is relevant to note that the Parliament has the power to enact laws and bring them into existence and it also has the power to repeal or delete them from existence. However, such repealed or deleted provisions are generally saved and continue to apply to pending proceedings. The idea behind such saving such provision(s) is to not disturb the rights and obligations that have already accrued on parties. Generally, a repealing statute also includes a savings clause by virtue of which the repealed provisions continue to apply to pending proceedings. However, there may be cases where the legislature fails to include a savings clause due to inadvertence and the same may result in injustice to the parties on whom rights under the repealed provisions already accrued. To overcome such cases, Section 6 of the Act, 1897 was enacted and the same is extracted below: 6. Effect of repeal.-Where this Act, or any Central Act or Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are applicable to central statutes and the principles of the General Clauses Act can be made applicable to statutes made by the State Legislatures as well (See: State of Punjab v. Harnek Singh (supra)). It is relevant to state at this point that the Manipur Legislature enacted the Manipur General Clauses Act, 1966, which came into force on 30.03.1966, by which the provisions of the General Clauses Act, 1897 were made applicable to the statutes of the Manipur Legislature. Explaining the scope and applicability of Section of 6 of the Act, 1897, the Supreme Court in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. (2001) 8 SCC 397, held that pending proceedings under a statute which subsequently repealed are saved. The relevant paragraphs are extracted below: 25. The opening words of Section 6 specify the field over which it is operative. It is operative over all the enactments under the General Clauses Act, Central Act or regulations made after the commencement of the General Clauses Act. It also clarifies in case of repeal of any provision under the aforesaid Act or regulation, unless a different intention appears from such repeal, it would have no effect over the matters co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings under an omitted provision. It is contended that Section 6 of the Act, 1897 is only applicable to repealed provisions and not omitted provisions. Reliance was placed on the following paragraph of a Constitution Bench decision in Rayala Corpn. (supra): 17. Reference was next made to a decision of the Madhya Pradesh High Court in State of Madhya Pradeshv. Hiralal Sutwala [AIR 1959 MP 93] 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, Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132-A of the DIRs for the two obvious reasons that Section 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 Section 6 of the General Clauses Act had been applied, no doubt this complaint against the two accused for the offence punishable under Rule 132-A of the DIRs could have been instituted even after the repeal of that rule. 19. In the context of omission of a provision and applicability of Section 6 of the Act, 1897, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t continue but fresh proceedings for the same purpose may be initiated under the new provision. 38. In the present case, as noted earlier, Section 6 of the General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof. 20. Going by the decisions in Kolhapur Canesugar (supra) and Rayala Corpn. (supra), one might reach a conclusion that Section 6 of the Act, 1897 does not apply to omitted provisions and only applies to repealed provisions. However, such a conclusion would be misplaced and wrong in light of the decisions of the Supreme Court in Fibre Boards (supra) and Shree Bhagwati (supra). 21. The Supreme Court in Fibre Boards (supra) considered the question whether Section 6 of the Act, 1897 is applicable to provisions that are omitted. The Court held that omission of a provision is tantamount to express repeal. Therefore, Section 6 of the Act, 1897 is applicable to provisions that are omitted. Discussing the decision in Rayala Corpn. (supra), the Court held that the finding that Section 6 of the Act, 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemical Industries Ltd. v. Union of India, (1993) 1 Guj LR 5 : (1995) 79 ELT 367] has noted the decision of a Constitution Bench of this Court in Chief Inspector of Mines v. Karam Chand Thapar [AIR 1961 SC 838 : (1961) 2 Cri LJ 1] and has relied upon the principles laid down therein. The Full Bench overlooked the position that that was a case under Section 24 of the General Clauses Act which makes provision for continuation of orders, notification, scheme, rule, form or bye-law, issued under the repealed Act or regulation under an Act after its repeal and re-enactment. In that case Section 6 did not come up for consideration. Therefore the ratio of that case is not applicable to the present case. With respect we agree with the principles laid down by the Constitution Bench in Rayala Corpn. case [(1969) 2 SCC 412]. In our considered view the ratio of the said decision squarely applies to the case on hand." 27. Kolhapur Canesugar Works Ltd. [(2000) 2 SCC 536] judgment also concerned itself with the applicability of Section 6 of the General Clauses Act to the deletion of Rules 10 and 10-A of the Central Excise Rules on 6-8-1977. 28. An attempt was made in General Finance Co. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noticed that two reasons were given in Rayala Corpn. (P) Ltd. [(1969) 2 SCC 412] for distinguishing the Madhya Pradesh High Court judgment [1958 SCC OnLine MP 149 : AIR 1959 MP 93]. 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 reasons for the non-applicability of Section 6 of the General Clauses Act. In such a situation, obviously both reasons would be ratio decidendi and would be binding upon a subsequent Bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word "repeal", an "omission" would not be included. We are, therefore, of the view that the second so-called ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court discussed its decision and clarified its decision in Fibre Boards (supra). The Court reiterated that Section 6 of the Act, 1897 is equally applicable to omission of a provision. The Court also held that the effect of words 'omit' and 'repeal' is the same as both result in deletion of a provision. Therefore, it cannot be said that Section 6 of the Act, 1897 is not applicable to omission of a provision. The Court discussed in detail the decision of Rayala Corpn. (supra) and held that the said decision did not consider Section 6A of the Act, 1897, therefore, was rightly held per incuriam in Fibre Boards (supra). The relevant paragraphs are extracted below: 7. First, it may be stated that the judgment of this Court in Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 : (2015) 376 ITR 596] has taken the view that an "omission" would amount to a "repeal", after referring to several authorities of this Court, G.P. Singh's Principles of Statutory Interpretation, Section 6-A of the General Clauses Act, 1897, and a passage in Halsbury's Laws of England. Ultimately, this Court arrived at the conclusion that an "omission" would amount to a "repeal" for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1988, which, in his opinion, makes it clear that Parliament itself has understood that a repeal under Section 6 of the General Clauses Act would not apply to omissions. He has further argued that it may be true that the expression "repeal" is normally used when an entire statute is done away with, as opposed to an "omission" which is applied only when part of the statute is deleted, but said that this is not invariably the case, and referred to Section 1 of the Contract Act, 1872 in which enactments mentioned in the schedule are repealed not in their entirety but only to the extent provided and, therefore, argued that the expression "repeals" will apply also to a part of an enactment as opposed to the enactment as a whole. **** 12. From this it is clear that when Section 6 of the General Clauses Act speaks of the repeal of any enactment, it refers not merely to the enactment as a whole but also to any provision contained in any Act. Thus, it is clear that if a part of a statute is deleted, Section 6 would nonetheless apply. Secondly, it is clear, as has been stated by referring to a passage in Halsbury's Laws of England in Fibre Board [Fibre Boards (P) Ltd. v. CIT, (2015) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h omits and, therefore does not refer to a repeal, is equally fallacious. In Bhagat Ram Sharma v. Union of India [Bhagat Ram Sharma v. Union of India, 1988 Supp SCC 30 : 1988 SCC (L&S) 404 : (1988) 6 ATC 783], this Court held that there is no real distinction between a repeal and an amendment and that "amendment" is in fact a wider term which includes deletion of a provision in an existing statute. In the said judgment, this Court held: (SCC pp. 40-41, paras 17-18) "17. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between 'repeal' and an 'amendment'. In Sutherland's Statutory Construction, 3rd Edn., Vol. 1 at p. 477, the learned author makes the following statement of law: 'The distinction between repeal and amendment as these terms are used by the courts, is arbitrary. Naturally the use of these terms by the court is based largely on how the legislatures have developed and applied these terms in labe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] a Constitution Bench of this Court expressly held as the first reason that Section 6 applies only to repeals and not to omissions. The Fibre Board [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 : (2015) 376 ITR 596] judgment has clearly held as follows: (SCC p. 354, para 31) "31. First and foremost, it will be noticed that two reasons were given in Rayala Corpn. (P) Ltd. [Rayala Corpn. (P) Ltd. v. Director of Enforcement, (1969) 2 SCC 412] for distinguishing the Madhya Pradesh High Court judgment [State of M.P. v. HiralalSutwala, 1958 SCC OnLine MP 149 : AIR 1959 MP 93]. 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to the savings provision in Section 1 of the Contract Act, 1872 again does not take us very much further as the expression "repeal" as has been pointed out above can be of part of an enactment also. This being the case, when the legislature uses the word "omit" it usually does so when it wishes to delete a particular section as opposed to deleting an entire Act. As has been noticed both in Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 : (2015) 376 ITR 596] and hereinabove, these are all expressions which only go to form and not to substance. Even assuming for the sake of argument that we were inclined to agree with Shri Aggarwal, given the force of his inexorable logic, this Court has laid down the parameters of when it would be expedient to have a relook at a particular decision in Keshav Mills Co. Ltd. v. CIT [Keshav Mills Co. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636] , as follows: (SCR pp. 921-22 : AIR pp. 1643-44, para 23) "23. In dealing with the question as to whether the earlier decisions of this Court in New Jehangir Mills case [New Jehangir Vakil Mills Ltd. v. CIT, (1959) 37 ITR 11 (SC)] and Petlad Co. Ltd. case [Petlad Turkey Red Dye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such omitted/deleted/repealed provision. The relevant paragraphs are extracted below: 27. By virtue of Section 6 of the General Clauses Act, the repeal of an enactment would not affect the previous operation of such an enactment. In Shree Bhagwati Steel Rolling Mills v. CCE, this Court has held that repeal is to be treated similarly as an omission and Section 6 of the General Clauses Act would apply equally to an omission as it would apply to a repeal. On account of Sections 6(b) and 6(c) of General Clauses Act, the omission of Section 4(2) of 1956 Act cannot affect the previous operation of the said Section 4(2)........ 28. The deletion of Section 4(2) took place w.e.f 09.09.2005. Therefore, the effect of the deletion can only be in respect of successions which opened on or after 09.09.2005. This is because under Section 6(b) and 6(c) of the General Clauses Act repeal cannot affect the previous operation of any enactment so repealed and cannot affect the previous operation of any enactment so repealed and cannot affect any right which may have been acquired or accrued. In the present case, it is to be held that succession has opened prior to 09.09.2005, the rights of the desc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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