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Collector of Central Excise and Vs. National Jute Manufactures - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(5)LC2417Tri(Delhi)
AppellantCollector of Central Excise and
RespondentNational Jute Manufactures
Excerpt:
.....the collector of central excise, calcutta. the respondents in the said appeals are m/s. national jute manufactures corporation ltd. they are the appellants in the other two appeals. for purposes of convenience they will be referred to as respondents in this order. in the appeals filed by the collector they contended that the said appeals are not entertainable by this tribunal. the proceedings arise under the jute manufactures cess rules, 1976. since the question of maintainability of appeals against the orders under the said rules was common to these five appeals as well as certain other appeals, notices were issued to the parties in the other appeals also to make missions, if deemed fit, in the present hearing. on the date fixed the collector was represented by shri vineet ohri,.....
Judgment:
1. The appellant in the first three appeals mentioned above is the Collector of Central Excise, Calcutta. The respondents in the said appeals are M/s. National Jute Manufactures Corporation Ltd. They are the appellants in the other two appeals. For purposes of convenience they will be referred to as respondents in this order. In the appeals filed by the Collector they contended that the said appeals are not entertainable by this Tribunal. The proceedings arise under the Jute Manufactures Cess Rules, 1976. Since the question of maintainability of appeals against the orders under the said rules was common to these five appeals as well as certain other appeals, notices were issued to the parties in the other appeals also to make missions, if deemed fit, in the present hearing. On the date fixed the Collector was represented by Shri Vineet Ohri, Senior Departmental Representative and the respondents, M/s. National Jute Manufactures Corporation Ltd. were represented by Shri R. Das, Senior Advocate along with Shri Ashim Kumar Ghosh, Advocate, assisted by Shri B. Bandyopadhyay, Assistant Manager (Legal) of the respondents. None others appeared during this hearing.

2. Clause 3 of the Jute Manufactures Cess Rules, 1976 reads as follows :- "Save as otherwise provided in these rules the provisions of the Central Excises and Salt Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refund of duty shall, so far as may be, apply in relation to the levy and collection of the cess as they apply in relation to the levy and collection of the duty of Excise on jute manufactures under that Act." 3. The contention for the respondents is that the above is an instance of legislation by incorporation and that it is the provisions of the Central Excises and Salt Act and the rules made thereunder that were in force in 1976 that were so incorporated. It is, therefore, further contended that it is to the provisions as they stood in 1976 that reference has to be made to find out the appellate authorities and since this Tribunal came into existence sequent to 1976, the appeal to this Tribunal against the orders of the lower authorities is not maintainable. The argument is that the appellate and revisional authorities would be as provided for in the Central Excises and Salt Act as it stood in 1976. The department contests this position. It is claimed for the department that the provision above-cited was an instance of legislation by reference and, therefore, the Central Excises and Salt Act and the rules thereunder, as they stand amended from time to time would govern the proceedings, including appeals, and hence the appeals to the Tribunal are maintainable.

4. We have heard Shri R. Das, Senior Advocate, for the respondents and Shri Vineet Ohri, Senior Departmental Representative, for the department.

5. The contention of Shri Das is that under the provision above cited in the Jute Manufactures Cess Rules (hereinafter to be referred to as the Rules) there had been an incorporation of the provisions of the Central Excises and Salt Act (hereinafter to be referred to as the Act) in the said rules and, therefore, the provisions of that Act, as it stood at the time of incorporation in 1976 would alone continue to apply in respect of proceedings under the Rules and not the provisions of the Act as they may stand amended from time to time. On the other hand, the contention for the department is that there is only a reference to the provisions of the Act and not an incorporation as such and hence the provisions of the Act as they may stand amended from time to time would apply in respect of proceedings under the Rules. In support of his contention Shri Das mentioned that while the object of the Act was to earn revenue, the object of the Rules was to provide for development and regulation of certain industries and hence the two statutes would not be in pari materia. But this question, whether they are in pari materia, would become relevant if the contention regarding legislation by incorporation is accepted and thereafter it has to be seen whether the test of in pari materia would have to be applied in terms of the decision of the Supreme Court in State ofMadhya Pradesh v.M.V. Narasimhan (AIR 6. So far as the distinction between legislation by incorporation and legislation by reference is concerned, it has been observed by the Supreme Court in Bagya v. Gopikabai (AIR 1978 SC 793) in paragraph 27 as follows : "Broadly speaking, legislation by referential incorporation falls in two categories : First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular ject, as a genus. In the case of the former, the sequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the sequent amendments also, made from time to time in the generic law on the ject adopted, by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus : "A statute which refers to the law of a ject generally adopts the law on the ject as of the time the law is invoked. This will include all the amendments and modifications of the law sequent to the time the reference statute was enacted." (Vide, Sutherland's Statutory Constructions, Third Edition, Article 52C8, p. 5208).

Corpus Juris Secundum also enunciates the same principle in these terms : "...Where the reference in an adopting statute is to the law generally which governs the particular ject, and not to any specific statute or part thereof,...the reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes ate consistent with the purpose of the adopting statute." The Supreme Court has further held in AIR 1982 SC 697 that there is a distinction between a mere reference to or a citation of one statute in another and incorporation which in effect means the bodily lifting of the provisions of one enactment and making them part of another.

7. It is with reference to these tests that it has to be decided in the present instance whether the provisions of rule 3 of the Jute Manufactures Cess Rules amount to legislation by reference or legislation by incorporation.

8. The provisions of rule 3 have been extracted supra. It is seen from that no particular provision of the Central Excises and Salt Act has been specifically referred to therein for purpose of incorporation in the Jute Manufactures Cess Rules. There is only a general reference to the provisions of Central Excises and Salt Act and the rules made thereunder, including those relating to refund of duty, the further qualification being that they would apply "so far as may be". In the circumstances, it cannnot be said that there has been incorporation of specific provisions of the Central Excises and Salt Act into the Jute Manufactures Cess Rules.

9. Shri Das relied upon the decision of the Privy Council in Secretary of State v. Hindustan Cooperative Insurance Society Limited (AIR 1935 Privy Council 149) and the decision of the Supreme Court in the case of Mahindra and Mahindra Limited v. Union of India (AIR 1979 SC 798). In the case before the Privy Council the provision in the Calcutta Improvement Act made reference to the provisions of the Land Acquisition Act but further specified modifications of that Act, such modifications being contained partly in the body of the Act and partly in a Schedule attached to the Act. Thus there was specific reference to specific provisions of the incorporated statute. It was in these circumstances that the Privy Council held that the provisions in the incorporated Act as they stood on the date of incorporation would alone apply and not as they may stand amended from time to time.

10. Similarly in AIR 1979 SC 798 it was pointed out that specific reference was made to the provisions of Section 100 of the Civil Procedure Code in Section 55 of the Monopolies and Restrictive Trade Practices Act. It had been provided that any person aggrieved by an order made by the Commission under Section 13 may prefer an appeal to the Supreme Court on one or more of the grounds specified in Section 100 of the Code of Civil Procedure, Act V of 1908. The Supreme Court held that in view of specific reference to the particular provision in the Civil Procedure Code (Section 100) it is only the provisions of Section 100 Criminal Procedure Code as they stood on the date of incorporation that would apply in construing the ambit of the proceedings under Section 55 of the Monopolies and Restrictive Trade Practices Act. Thus both the decisions relied on by Shri Das related to legislation by incorporation and not legislation by reference.

11. It has been already seen that Clause 3 of the Jute Manufacture Cess Rules referred generally to the provisions of the Central Excises and Salt Act and the rules made thereunder, and not to any particular section or rule. Therefore applying the test mentioned in AIR 1978 SC 793 that would be an instance of legislation by reference and not legislation by incorporation. It therefore follows that the provisions of the Central Excises and Salt Act as they stand amended from time to time would have to be applied in connection with proceedings referred to in rule 3 of the Jute Manufactures Cess Rules. If so applied, the present appeals would be seen to be maintainable before us.

12. Shri Das raised a contention that under rule 3 it is only the provisions relating to levy and collection (including refund) in the Central Excises and Salt Act, that were made applicable. But it was pointed out to him that if this argument is pursued further it would lead to the result that there would be no provision at all for appeals in respect of orders under the Jute Manufactures Cess Rules. At that stage Shri Das stated that it was not his argument that there were no provisions at all for appeal in respect of proceedings under the Jute Manufactures Cess Rules and that he concedes that provisions regarding appeals as in the Central Excises and Salt Act would be applicable in respect of decisions under the Jute Manufactures Cess Rules also.

13. Shri Das wanted to draw a distinction between incorporation by virtue of provisions in the Act and incorporation by virtue of provisions in the Rules. He contended that the result would vary depending upon whether the incorporation was under an Act or under the Rules. But we see no reason to make any such distinction.

14. It may be further seen that even if the provisions of Rule 3 are to be construed as an instance of legislation by incorporation there are exceptions laid down by the Supreme Court in AIR 1975 SC 1835 that would have to be applied. The Supreme Court had laid down in the said decision in paragraph 16 as follows : "16. On a consideration of these authorities, therefore, it seems that the following proposition emerges : Where a sequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the sequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases : (a) where the sequent Act and the previous Act are supplemental to each other ; (c) where the amendment in the previous Act, if not imported into the sequent Act also, would render the sequent Act wholly unworkable and ineffectual ; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the sequent Act." 15. Shri Ohri contends that the two enactments are in pari materia as also supplemental to each other and exceptions (a) and (b) would apply.

In Craies On Statute Law (7th Edition) it is stated in page 134, as follows: "In the American case of United Society vs. Eagle Bank, Hosmer J. said : "Statutes are in pari materia which relate to the same person or thing, or to the same class of persons or things. The word par must not be confounded with the word similis. It is used in opposition to it, as in the expression magis pares sunt quam similies, intimating not likeness merely, but identity. It is a phrase applicable to the public statutes or general laws made at different times and in reference to the same ject." In Maxwell on The Interpretation of Statutes (12th Edition) it is stated at page 66 : "Statutes are said to be in pari materia when they dealt with the same person or thing or class : it is not enough that they dealt with a similar ject-matter". The Jute Manufacture Cess Rules were framed for the purpose of levy and collection of cess on jute manufactures. Rule 2(g) thereof laid down that words and expressions used therein and not defined but defined in the Central Excises and Salt Act or Rules made thereunder have the meanings respectively assigned to them in that Act or the Rules. Rule 3 further provided that the procedure for levy and collection (as well as refund) shall be as in the Central Excises and Salt Act in relation to the levy and collection of duty of Excise on jute manufactures under that Act. In view of these provisions, it appears to us clear that the two enactments must be held to be in pari materia. The contention that the object behind the Industries (Development and Regulation) Act, 1951 (under which the Jute Manufacture Cess Rules were promulgated) was for development and regulation of certain industries while the object of the Central Excises and Salt Act was merely collection of revenue, does not lead to the conclusion that the statutes were not in pari materia.

16. The enactments should be further held supplemental to each other as the provisions of the Jute Manufactures Cess Rules could not be worked out without reference to the provisions in the Central Excises and Salt Act. Therefore for both these reasons it has to be held that exceptions (a) and (b) mentioned by the Supreme Court apply to the facts of the present case.

17. It may be further seen that if the provisions of the Central Excises and Salt Act as they stood in 1976 are alone to be applied even now in respect of proceedings under the Jute Manufactures Cess Rules, the provisions for appeal in the first instance would be unworkable.

That is because under the Act before its amendment the first appeal was to the Appellate Collector. The Office of the Appellate Collector is no longer in existence after amendment of the Act in 1982, having been replaced by the Office of the Collector (Appeals). No doubt, the change may appear to be only in designation. But if an appeal is to be filed before an Appellate Collector (as required under the earlier provisions) there will be no such officer available after the amendment for receiving the appeal. Therefore the present appears to be a case where exception (c) enunciated by the Supreme Court would also apply.

18. Therefore, following the decision of the Supreme Court in AIR 1975 S.C. 1835 it has to be held that even if the provisions under Rule 3 of the Jute Manufactures Cess Rules are to be construed as an instance of legislation by incorporation, the exceptions would apply and, therefore, the provisions of the Act as amended would have to be applied. In that event the present appeals would be maintainable before us.

19. Shri Das, no doubt, raised a further contention that even if the appeals are maintainable before the Tribunal, the appeals should be heard by a Regional Bench only and not by a Special Bench as no question as to rate of duty or value for purpose of assessment is involved. But as the present hearing was confined only to the question of the maintainability of the appeals before the Tribunal, no decision is taken on this point at present.

20. As earlier mentioned, M/s. National Jute Manufactures Corporation Limited are themselves appellants in two of the appeals.

21. We therefore hold that all the five appeals are maintainable before this Tribunal and will be posted for hearing on merits on a suitable date, of which notice shall be given to the parties.


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