TaxTMI 
TaxTMI 
1991 (3) TMI 250
X X X X Extracts X X X X
X X X X Extracts X X X X
....-first Year of the Republic of India as follows: - 1. This Act may be called the Gold (Control) Repeal Act, 1990. 2. 2. The Gold (Control) Act, 1968 is hereby repealed." 2. At the outset that the doubt has arisen whether this Tribunal can hear the appeals as Appellate Tribunal under the provisions of the Gold (Control) Act, when the very Act itself was repealed without saving clause. This issue was not raised by either side. Generally Tribunal is not concerned with the issues which were never raised by the parties in dispute before it and we are not going to pronounce on abstract question of law when there is no dispute to be settled. But this being a fundamental issue relating to the jurisdiction which is of utmost importance and further neither jurisdiction can be conferred upon by mutual consent nor can be presumed by an inference unless such right is given specifically under a Statute and continues to be in existence, we felt necessity of examining this issue in detail with reference to case law. Hence all these cases were posted for hearing on 19-9-1990 to enable the parties to address the argumen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tribunal constituted under Section 129 of the Customs Act, 1962, and this Institution continues to be in existence even after the Gold Control Act was repealed. Appeal is a remedy which was provided under the provisions of the Gold Control Act arise out of proceedings initiated under that Act and such rights have to be enforced by the parties before this Appellate Forum and such right is neither taken away by the repealed Act nor provided elsewhere and in the absence of saving clause as it is governed by the provisions of Section 6 of the General Clauses Act. They contended that General Clauses Act is applicable to all laws and enactments irrespective of the fact that Gold Control Act was special Statute. They said that General Clauses Act cannot be compared with that of Indian Limitation Act, 1963 which is procedural one. In this connection Sri Gouri Shanker Murthy stressed that Limitation Act is only a procedural law whereas General Clauses Act is a substantive law. In respect of procedure wherever it is specifically provided in the Special Statute, the provisions of special Enactment are subjected to such limitation or procedure prescribed in that respective Statute and cannot ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....8 was repealed on 6-6-1990. There is no mention about retrospective effect in the repealed Act. Any Act either enactment of new Act or repealing of old Act will come into effect prospectively unless it is specified in the Act at the time of enactment. In this case it is clear that repealed Act is applicable prospectively and not retrospectively. The pre-existing Gold Control Act remained untouched and unaffected so far as the Statute Book is concerned. Where there is a repeal clearly with retrospective effect, the repealed provisions would be regarded as having been wiped out from the Statute. Whenever there is a repeal of enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless as the Section itself says, a different intention appears in the repealing Statute. As regards applicability of General Clauses Act to the present situation, while interpreting the Statute whether it is a special enactment or otherwise, it cannot ignore the general principles of law of the land unless contrary intention appears in the very Statute. Special law is the species of the common law. We can say that it is only qualified or development of General Law. In the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....neral Clauses Act. Hence the provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the "Rules" and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clauses Act, follow." The Supreme Court in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh (AIR 1953 SC 221 = 1983 (13) E.L.T. 1277) observed : "..... a right of appeal is not merely a matter of procedure. It is a matter of substantive right. The right of appeal from the decision of an inferior Tribunal to a superior Tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins, J. in Nana v. Sheku (ILR 32 Bom. 337) to disturb an existing right of appeal is not a mere alteration of procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nding such repeal, but without prejudice to the application of Section 6 of the General Clauses Act, 1897, anything done or any action taken (including any application made to or any order made or licence issued by, the Gold Board Administrator or other competent authority) under or in pursuance of the provisions of Part XIIA of the Defence of India Rules, 1962, shall so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act". 15. Thereafter the Gold Control Ordinance of 1968 was issued and that ordinance repealed and replaced Part XIIA of the Defence of India Rules (i.e. The Gold Control Rules). Section 117(1) of the Ordinance deals with repeals and savings and reads as follows :- "(I) As from the commencement of this ordinance, the provisions of Part XIIA of the Defence of India Rules, 1962 shall stand repealed and upon such repeal, Section 6 of General Clauses Act, 1897 shall apply as if the said part were a Central Act. (2) Notwithstanding the repeal made by sub-section (1) that without prejudice to the application of Section 6 of the General Clauses Act, 1897,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he General Clauses Act; And for this purpose even the "rules" were deemed to be 'an Act'. Similarly Gold Control Act, 1968 also incorporated an exhaustive saving clause. (ii) In contrast, the Gold Control Repeal Act, 1990 does not incorporate any saving clause (and does not refer to the General Clauses Act). 19. Since Gold Control Act, 1968 has been thus repealed 'simpliciter' it may be useful indeed necessary to refer to the statement of objects and reasons indicated by the Honourable Finance Minister at the time of introducing the Gold Control Repeal Bill, 1990 in the Parliament in order to find out the legislatures intention in providing for such a repeal. But the point is can we do so? For an answer to this question we may refer to the following judgments of the High Courts and the Hon'ble Supreme Court. 1. Supreme Court Judgment - in the case of S.C. Prashar and Another v. Vasantsen Dwarkadas and Others (Reported in AIR 1963 SC Page 1356): - Per : Hon'ble Justice S.K. Das : "It is indeed true that the statement of objects and reasons for introducing a particular piece of legislation cannot be used for i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....controlling the production, manufacture, supply, distribution, use and possession of, and business in, gold ornaments and articles of gold. The said enactment was meant to supplement other preventive measures to make circulation of smuggled gold difficult and its detection easier by extending the control over gold beyond the stage of import. 2. Over the past 22 years, the results achieved under the Act have not been encouraging and the desired objectives for which the Act was introduced have not been achieved due to various socio-economic and cultural factors in the vast multitude of the country's population and the lack of adequate administrative machinery. On the other hand, this regressive and purely regulatory Act has given rise to considerable dissatisfaction in the minds of the public as it has caused hardship and harassment to be artisans and small self-employed goldsmiths who have not been able to develop their skills, and earn proper living on account of the rigours which this Act imposed upon them. 3. Taking these factors into consideration and the advice of experts who have examined issues related to this Act imposed upon them. 4. The Bill seeks to achieve the s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of any offence committed against any enactment as repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or regulation had not been passed. Section 24. Continuation of orders, etc., issued under enactments repealed and re-enacted:- "Where any Central Act or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule form or bye-law, made or issued under the provisions so re-enacted." 27. (i) A reading ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is about repeal of an enactment without a saving clause and therefore does not support the contentions of the learned Counsels (or the learned SDR for that matter). On the contrary this judgment contains observations which throw light on the issue before us from a different angle as would be evident from the following extracts taken from Paragraphs 13 to 17 of the order. "the general rule in regard to temporary statutes is that in the absence of the special provision to the contrary proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. In my opinion as the Gold Control Act, 1968 was brought in force on 1-9-1968 and expired on 6-6-1990 it was only in the nature of a temporary statute. Hence the above principle enunciated by the Hon'ble Supreme Court clearly applies in the absence of a saving clause. Their Lordships have in this connection also referred to the case of S. Krishnan v. State of Madras reported in 1951 SCR 621 (AIR 1951 SC 301) and the judgment of Allahabad High Court in the case reported in AIR 1951 All. 706; here a similar view was taken when considering the effect of repeal of Defence of India A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re repealed by a Central Act". In other words actions or omissions during the period when the Acts were in force were saved by a saving clause which made Section 6 applicable after the expiry of the Act. Whereas in the present case, there is no saving clause provided (and there is no reference to Section 6 of the General Clauses Act). Hence this case is distinguishable. 4. New India Insurance Company Limited v. Smt. Shanti Misra (AIR 1976 SC 237) : This case is distinguishable as it also does not deal with the repeal of an enactment but only an amendment to a Section which merely resulted in the change of forum. And the prospective v. retrospective operation of such a change, i.e. a change of adjectival or procedural law and not of substantive law; And it was simply held that such a change of law operates retrospectively. (Para 5). 5. Atma Steels Private Limited and others v. Collector of Central Excise, Chandigarh and Others [1984 (17) E.L.T. 331 (Tri.)] : - Larger Bench Order : This case also does not deal with repeal of an enactment. It only deals with the amendment of Central Excise Rules having the effect of omission of Rules 10 and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; it basically deals with the adaptation, amendment and modification of CPC (and not its repeal); And the prospective v. retrospective effect of the modification in the light of circumstances surrounding constitutional changes in the wake of independence; and the effect of promulgation of the Constitution. (2) The continuity and saving of Civil rights under the Constitution; And the quoted para has to be read with reference to this context. Further it does not support the point of view of the learned Counsels and the SDR. On the contrary it makes allowance for the rival point of view inasmuch as it permits legislative intent to be taken into account even as per the Para 23 quoted by the learned Counsels. Sub-para (5) of Para 23 in fact reads as follows : - "This vested right of appeal can be taken away only by a subsequent enactment if it so provided expressly or by necessary intentment and not otherwise". The following would make the position more clear. In this case a suit was filed before the Constitution of India came into force. At that time there was a Federal Court (established under the Government of India Act, 1935). The G....
X X X X Extracts X X X X
X X X X Extracts X X X X
....continued existence and capacity to deal with the pending matters, from a different angle. 31. It has been argued that since this Tribunal had been created under Section 2(1) (B) of the Customs Act it will continue to exist even after the repeal of the Gold Control Act and will continue to have powers to hear the pending matters in view of Section 6 of the General Clauses Act. 32. In this respect I am of the opinion that while Section 2 of the Customs Act created the organisation to be called as Customs, Excise and Gold (Control) Appellate Tribunal, it did not (and indeed could not) clothe it with the power and authority of an appellate body competent to hear the appeals in gold control matters. Its capacity to act as such an authority was derived only from the Section 2aaa read with Section 81 of the Gold Control Act, 1968. Hence if upon repeal the Gold Control Act "had lapsed or expired, then this authority could not survive, such a repeal. This view is supported by the judgment of Hon'ble Supreme Court in the case of Garikapati Veeraya v. N. Subbiah Choudhry and Others (AIR 1957 SC 540) as already mentioned above. 33. The arguments that the saving of the enactment by Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be deemed as having existed only for those actions which were commenced, prosecuted and concluded. Even pending actions cannot be continued. The High Court quoted with approval the view of Lord Tenter-den : "When an Act of Parliament is repealed, it must be considered (except as to transactions past and closed), as if it had never existed". "The effect of repealing a statute is to obliterate it as completely from the records of Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which commenced, prosecuted and concluded whilst it was an existing law". 2. The Hyderabad High Court in the case of Waheed Hasam Khran v. State of Hyderabad (reported in AIR 1954 Hyderabad Page 204): "When an Act is repealed, it is the same thing as if it had never existed except with reference to such parts as are saved by the repealing statute". 3. Punjab High Court - in the case of National Planners Limited v. Contributories (reported in AIR 1958 Punjab Page 230): "When an action is brought under a statute, which is afterwards repealed, the High Court loses the jurisdiction of the suit pending under t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hout a saving clause whether (i) This Tribunal still has the jurisdiction to hear pending matters (or) (ii) The capacity of this Tribunal to act as the Gold (Control) Appellate Authority has been extinguished; and the 'appeals' have abated as the pending proceedings have come to an end as they were on the date of repeal. 38. [Order per : Harish Chander, Vice President]. - Hon'ble President has referred to us the following point of difference between Shri S.K. Bhatnagar, Vice-President (earlier Member, Technical) and Shri G.A. Brahma Deva, Member (Judicial). The point of difference referred to us is re-produced below: - "In view of the repeal of the Gold (Control) Act, 1968 without a saving clause whether (i) This Tribunal still has the jurisdiction to hear pending matters (or) (ii) The capacity of this Tribunal to act as the Gold (Control) Appellate Authority has been extinguished; and the 'appeals' have abated as the pending proceedings have come to an end as they were on the date of repeal." 39. Notices of hearing were sent to the appellants as well as Delhi, Bombay, Calcutta and Madras Bar Associations. Calcut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is Tribunal has got the jurisdiction in respect of the pending appeals and the appeals to be filed in future. Shri Jain argued that Section 6 of the General Clauses Act does not work independently. Shri Jain further argued that when new Act is passed, there are normally provisions as to repeals and savings. He argued that by the passing of the (i) Present Repeal Act the forum has not been abolished; (ii) Neither the posts have been abolished nor the officers have left their posts. Gold Control Act was administered by Gold Control Administrator; (iii) The former Gold Control Appellate Tribunal sets; (iv) The appeal is a remedy. The remedy is saved by the repeal and this right cannot be taken away by legislation; (v) Section 6 is not applicable to temporary legislation; Temporary legislation is for particular Act and it is for a particular item. Section 6 of the General Clauses Act is applicable. Shri Jain argued that the right of appeal is a vested right. In support of the same, he cited the following judgments : - AIR 1953 SC 221. 1983 (13) E.L.T. 1277. AIR 1957 Privy Council 242. AIR 1957 SC 540. 1984 (16) E.L.T. 126. AIR 1960 SC 980 AIR 1968 SC 13 AIR 1975....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct. He argued that Gold Control Act was an economic and social measure. It was for cheeking of smuggling. Earlier the Defence of India Rules, 1963 came into force which banned the possession of gold beyond 14 carat purity. He referred to the judgments of the Supreme Court reported in AIR 1970 SC 1453. Shri Gujral argued that it is a perpetual and was not a temporary arrangement. In support of the same, he referred to the judgment of the Supreme Court as reported in AIR 1971 SC 1170. He argued that in 1971, an ordinance was issued and also referred to the 44th Law Commission Report and by Finance Act, 1980, the Tribunal was constituted under Sec. 82 of the Gold Control Act. He has referred to the judgments of Supreme Court reported in AIR 1975 SC 2016 and 2021. Earlier he argued that the Defence of India Act and the Defence of India Rules came into force with effect from 10-1-1963. He has referred to the definition of Appellate Tribunal. He argued that even after the repeal administrative posts as well continue and right of filing an appeal is a part of the Act. He has referred to the Interpretation of Statute by G.P. Singh at Page 354 (4th Edition). Shri Gujral has referred to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....treat Gold Control Act as temporary Act. He has referred to judgment of Supreme Court in the case as reported in AIR 1957 SC 497. He has referred to Paras 15,16, 17 and 23 of the order passed by the Tribunal. Shri Murthy, learned Advocate argued that after the repeal of Gold Control Act without a saving clause the Tribunal has jurisdiction to hear the matters. He refers to the following judgments: AIR 1958 Punjab 230. AIR 1954 Hyderabad 204. AIR 1956 Assam 166. 41. Shri G. Bhushan, learned SDR who has appeared on behalf of the Revenue stated that he has got no dispute as to the arguments advanced by Shri R.K. Jain, learned Consultant, Shri B.B. Gujral, learned Advocate, Shri Harbans Singh, learned Advocate and Shri M.G.S. Murthy, learned Advocate. He stated that after the repeal of the Gold Control Act without a saving clause this Tribunal continues to be an appellate forum. He has pleaded that the view taken by the Judicial Member is the correct view and the same should be adopted. 42. We have heard Shri R.K. Jain, learned Consultant on behalf of the Delhi Bar Association and also considered the written submissions of the Bombay and Calcutta Bar Associations and hav....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sts an intention to destroy them. Section 6 of the General Clauses Act therefore will be applicable unless the new legislation manifests an . intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new statute and the mere absence of a saving clause is by itself not material." Similar were the observation in the following cases : - 100 I.T.R. 5, 9-10. S.C. 116 I.T.R. 440, 450-1. 141 I.T.R. 140. Gold Control Act, 1968 had vested in the appellants certain rights and by the repeal of the said Act the rights which accrued to them are not taken away. Hon'ble Supreme Court in the case of Commissioner of Income Tax v. Shah Sadiq reported in 166 ITR 102 had held that :- "The savings provision in the repealing statute viz. Section 297 of the Income-tax Act, 1961 is not exhaustive of the rights which are saved or which survive the repeal of the Act of 1922, under which such rights had accrued. In other words, whatever rights are expressly saved by the "savings" provision stand saved. But, that does not mean that rights which are not saved by the 'sa....