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Agro-industrial Trading Corporation Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Excise
CourtKerala High Court
Decided On
Case NumberT.R.C. Nos. 61 and 62 of 1976
Judge
Reported in1988(38)ELT618(Ker)
ActsKerala General Sales Tax Act, 1963 - Sections 3(1), 5A and 9; Central Sales Tax Act, 1956 - Sections 14; Finance Act, 1969; Additional Duties of Excise (Goods of Special Importance) Act, 1957 - Sections 3 and 4; General Sales Tax Act, 1125; Calcutta Improvement Act, 1911 - Sections 71; Calcutta Improvement (Amendment) Act, 1921; Land Acquisition Act, 1894 - Sections 26(2) and 54; General Clauses Act - Sections 6A, 8 and 8(1); Foreign Exchange Regulations Act, 1952 - Sections 23A; Customs Act; Sea Customs Act, 1878 - Sections 19, 19(1) and 178A; Sea Customs (Amendment) Act, 1955; Madras General Sales Act, 1959; Madras General Sales (Amendment) Act, 1974; Bombay Sales Tax Act, 1959; Punjab Pre-emption Act, 1913 - Sections 3(1); Punjab Alienation of Land Act, 1900; Imports and
AppellantAgro-industrial Trading Corporation
RespondentState of Kerala
Appellant Advocate V. Rama Shenoi and; R. Raya Shenoi, Advs.
Respondent AdvocateGovernment Pleader
DispositionRevision allowed
Cases ReferredIn State of M.P. v. M.V. Narasimhan
Excerpt:
- - 149). one of the questions there considered was whether a further appeal lay to the judicial committee from an award of the tribunal constituted under the calcutta improvement act, 1911, referred to, in the opinion of the board, as the 'local act',in contradistinction, to the land acquisition act of 1894, referred to as the 'general act'.under the general act, it is well known that the value of the land acquired is determined, in the first instances, by the collector by his 'award',against which, there is provision for objection or reference before a court, terminating again, in an award, from which an appeal lies to the high court under section 54. on these provisions it was ruled in rangoon betatoung co. it seems to be no less logical to hold that where certain provisions from a.....v.p. gopaian nambiyar, c.j.1. these tax revision cases relate to the claim for exemption from sales tax under the kerala general sales tax act, 1963, in respect of the turnover on sales of 'p.v.c. cloth' (rexine), t.r.c. no. 61 of 1976 relates to the year 1971-72, and the claim is in respect of an amount of rs. 1,33,840.34; t.r.c. no. 62 of 1976 is in respect of 1972-73 and the claim is for rs. 1,56,181.04. the genesia and the statutory background of the claim is as follows:-under article 286(3) of the constitution of india. 'any law of a state shall, in so far as it imposes, or authorises the imposition of, a tax on the sale or purchase of goods declares by parliament by law to be of special importance in inter-state trade or commerce, be subject to such restrictions and conditions in.....
Judgment:

V.P. Gopaian Nambiyar, C.J.

1. These Tax Revision Cases relate to the claim for exemption from Sales Tax under the Kerala General Sales Tax Act, 1963, in respect of the turnover on sales of 'P.V.C. cloth' (Rexine), T.R.C. No. 61 of 1976 relates to the year 1971-72, and the claim is in respect of an amount of Rs. 1,33,840.34; T.R.C. No. 62 of 1976 is in respect of 1972-73 and the claim is for Rs. 1,56,181.04. The genesia and the statutory background of the claim is as follows:-

Under Article 286(3) of the Constitution of India.

'Any law of a state shall, in so far as it imposes, or authorises the imposition of, a tax on the sale or purchase of goods declares by parliament by law to be of special importance in inter-state trade or commerce, be subject to such restrictions and conditions in regard to the system of levy, rates and other Incidents of the tax a Parliament may be law specify'.

In accordance with the above constitutional provision, the Central Sales Tax Act, 1956, was passed by Parliament, the Section 14 declares goods of special importance In Interstate trade or commerce. Sub-clause (ii-a) of the said Section is:

'Cotton Fabrics, as defined In Item No. 19 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944);

and Item 19 of the I Schedule of the Central Excises and Salt Act, 1944, in so far as It Is material, read:-

' 'Cotton fabrics', mean all varieties of fabrics manufactured either wholly or partly from cotton, and include dhoties, sarees, chadars, bed-sheets, bed-spreads, counter-panes and table cloth, but do not include any such fabric -XXX XXX XXX XXX'

This was the definition till it was amended by the Finance Act of 1969. The amended definition, (to notice only its relevant portion) reads:-

'19 Cotton Fabrics -

'Cotton Fabrics' means all varieties of fabrics manufactures either wholly or partly from cotton and includes dhoties, sarees, chadders, bed-sheets, bedspreads, counter-panes, table-clothes, embroidary in the piece, in strips or in motifs and fabrics impregnated or coated with preparations of cellulose derivatives or of other artificial plastic materials but does not include any such fabric if it contains- XXX XXX XXX XXX'

The underlined words are new. The claim for exemption has to be adjudged in the light of the above provisions.

2. This legislative device (by no means uncommon), of referring to the definition in another Act, is repeated in Sub-clause (vii), (viii) and (ix), all of which refer back to the definition of the relevant expressions contained in the Central Excises and Salt Act, 1944. The claim for exemption from Sales Tax was based on the provisions of Sections 3 and 4 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, read with Schedule II Parts II and III of the said Act. Schedule III authorises the levy and collection in respect, inter alia, of cotton fabrics, rayoj or artificial silk fabrics produced or manufactured in India, of duties of excise at the rates specified in the I Schedule. These are to be In addition to the duties of excise chargeable under the Central Excises and Salt Act, 1944. The provisions of the said Act of 1944 and the Rules thereunder, including those relating to refunds and exemptions are to apply in relation to the levy and collection of additional duties in the same way in which they apply to the levy and collection of duties of excise. Under Section 4 during each financial year, payment is to be made out of the consolidated fund of India to the States in accordance with the provisions of the II Schedule, of such sums representing a part of the proceeds of the additional duties levied and collected during the financial year. Part III of the II Schedule shows Rs. 38,000,00 (Rs. Thirty Eight Lakhs) against Kerala. There is a proviso in Clause (vi) (b) (ii) of Part III of the II Schedule that, if during the financial year, there is levy and collection in any State specified (Kerala is one such State) on the sale and purchase of cotton fabrics etc. by or under any law of the State, no sums shall be payable to that State under Clause (b) in respect of that financial year. By the Kerala General Sales Tax (Amendment) Ordinance of 1957, mill-made textiles and sugar and tobacco were exempt with effect from 14-12-1957 from the levy of Sales Tax under the General Sales Tax Act, 1125, in view of the levy of Additional Excise duties by the Central Government. The Ordinance was replaced by Section 5A of the Kerala General Sales Tax Act. The said section exempted the dealer of mill-made textiles, tobacco and sugar from taxation under Section 3(1) of the General Sales Tax Act. When the General Sales Tax Act of 1125 M.E. was repealed and replaced by the Kerala General Sales Tax Act, 1963, Section 9 of the Act conferred the exemption in respect of goods specified in the III Schedule. Item 67 of the said Schedule is as follows:-

'Cotton Fabrics, Woollen fabrics and rayon or artifical silk fabrics as defined in Items Nos. 19, 21 and 22 respectively, of the First Schedule to the Central Excises and Salt Act, 1944'.

Under the Kerala General Sales Tax Act, 1963, unlike in the Act of 1125, the definition of 'cotton fabrics' etc. is geared directly to the I Schedule to the Central Excises and Salt Act, 1944.

3. Counsel for the petitioner contended that the words as defined in the Central Excises and Salt Act, 1944, in Item 7 of the Hi Schedule to the Sales Tax Act are words of 'reference' or 'citation' and not words of 'incorporation'. He placed the strongest reliance on the decision of the Privy Council in Secretary of State v. Hindustan Co-operative Insurance Society Ltd. (A.I.R. 1931 PC. 149). One of the questions there considered was whether a further appeal lay to the Judicial Committee from an award of the Tribunal constituted under the Calcutta Improvement Act, 1911, referred to, in the opinion of the Board, as the 'local Act', in contradistinction, to the land Acquisition Act of 1894, referred to as the 'General Act'. Under the General Act, it is well known that the value of the land acquired is determined, in the first instances, by the Collector by his 'award', against which, there is provision for objection or reference before a Court, terminating again, in an award, from which an appeal lies to the High Court under Section 54. On these provisions it was ruled in Rangoon Betatoung Co. v. Collector of Rangoon (40 Calc. 21) that no appeal lay to the Judicial committee as proceedings. Throughout were in the nature of arbitration proceedings. By the local Act the Board of Trustees was given power to carry out improvement schemes within the Municipal limits of Calcutta to facilitate expenditious acquisition of lands for the purpose. For the said purpose, the General Act stood modified and the modifications were enumerated, partly in the Act, and partly in the Schedule. The Local Act constituted a Tribunal to take the place of a Court under the General Act. By Section 71 the Tribunal was to be deemed to be a Court under the General Act, except for the purpose of Section 54 of the Act (Section 54 confers a right of appeal to the High Court against an Award) Section 71 of the local Act also provided that the award of the Tribunal to take the place of a court under the General Act. By Section 71 the Tribunal was to be deemed to be a court under the General Act, except for the purpose of Section 54 of the Act (Section 54 confers a right of appeal to the High Court against an Award) Section 71 of the local Act also provided that the award of the Tribunal shall be final. Almost contemporaneously with the passing of the local Act, there was an amendment to that Act, which provided for an appeal to the Bengal High Court in certain limited cases. In the light of these statutory provisions, the question which fell for consideration was whether an appeal to His Majesty in Council was maintainable. The right was founded on amendments effected to the General right was founded on amendments effected to the General Act by Act 19 of 1921. By which every award was to be deemed to be a 'decree', and the reasons therefore, a 'judgment' within the meaning of the C.P.C., the newly added Sub-section (2) of Section 26, giving effect to this; and on Section 54, which stood amended to cany a right of appeal to the Privy Council against the High Court's decree passed on appeal from an award. The Judicial Committee observed:

'Having regard to the provisions of Section 71 of the Local Act, above referred to under which the Tribunal is not deemed to be the 'Court' for the purposes of Section 54, Land Acquisition Act, it is, Their Lordships think, clear that the amendment of Section 54 cannot assist the contention presented to them on behalf of the Secretary of State. For even if the borrowing by the Local Act in 1911, from the Land Acquisition Act, could be held to include the new Section 54, an award of the Tribunal would not, by the express words of the Local Act, come within its provisions.' (pp. 151 and 152)

The Judicial Committee observed that there were more cogent objections to the maintainability of the appeal. Their Lordships were not prepared to accept the amendment made to Section 26(2) of the Land Acquisition Act as conferring a right of appeal. It was observed:

'It was not part of the Land Acquisition Act when the Local Act was passed, for in adopting the provisions of the Land Acquisition Act is there anything to suggest that the Bengal Legislature intended to bind themselves to any future additions which might be made to that Act. It is at least conceivable that new provisions might have been added to the Land Acquisition Act which would be wholly unsuitable to the local code.' (page 152).

Discussing the matter further, it was observed:

'In this country it is accepted that where a statute is incorporated by reference into a second statute, the appeal of the first statute does not affect the second: see the cases collected in 'Craies on Statute Law', Edn. 3, pp. 349-50. This doctrine finds expression in a common-form section which regularly appears in the Amending and repealing Acts which are passed from time to time in India. The Section runs:

'The appeal by this Act of any enactment shall not affect any Act... in which such enactment has been applied, incorporated or referred to:'

The independent existence of the two Acts is therefore recognised; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, Their Lordships think that the principle involved in as applicable in India as it is in this country. It seems to be no less logical to hold that where certain provisions from a 1 existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent Act to function effectually without the addition'. (page 152)

In the light of the above principles, it was pointed out that the provision in Section 71 of the Local Act giving finality to the award of the Tribunal and the deliberate exclusion of Section 54 of the General Act, from the provisions of the Local Act (which was allowed to stand even after the amendments to the General Act), were strong indicating of the legislature's intention that there should be no right of appeal from the High Court to the Privy Council. The decision was largely rested on the effect of the provisions of the Local Act even after the amendment of the General Act. There was sufficient manifestation that the amendments of the General Act were not to operate the local sphere.

4. The decision of the Judicial Committee was noticed and considered by the Supreme Court in Nathella Sampathu Chetty's Case (AIR 1962 S.C. 316). Briefly stated, the position disclosed was this: one of the questions that arose for consideration was whether Section 178A introduced in the Sea Customs Act by a subsequent amendment, can be relied on for the purposes of the Foreign Exchange Regulations Act which had incorporated the Customs Act at a time before the introduction of Section 178A by amendment. The Foreign Exchange Regulation Act, brought into force on 25-3-1947 provided by Section 23-A, introduced by an amendment in 1952, that the restrictions imposed by certain specified provisions of the Art,

'shall be deemed to have been imposed under Section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly...'

Section 19 of the Sea Customs Act enacted:

'19. The Central Government may from time to time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government.'

Section 178-A was introduced in the Sea Customs Act, 1878 by the amend in Act 21 of 1955. It provided that where any goods are seized in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. One of the questions examined by the Supreme Court was whether Section 178-A introduced in 1955 is attracted to the provisions, enacted by Section 23-A of the Foreign Exchange Regulation Act. The argument was that Section 23-A of the latter Act enacted in 1952 incorporated into the Foreign Exchange Regulation Act all the relevant provisions in the Sea Customs Act as it stood in 1952, with the result, that subsequent amendments to the Sea Customs Act did not and could not, effect, modify, or enlarge, the scope of the incorporated Sea Customs Act, which had become part of the Foreign Exchange Regulation Act. In support of the contention, reliance was place on Secretary of State v. H. C. I. Society (AIR 1931 P.C. 149). It was held by the Supreme Court that the Privy Council case bore no resemblence to the case on hand. The Court emphasised the distinction between a mere reference to, or a citation of, one statute in another, and an incorporation, which, in affect, means the bodily lifting of the provisions of one enactment and making it a part of another; so much so, that the appeal of the former leaves the latter wholly untouched. In the case of a 'reference' or a 'citation', however, of one enactment by another without incorporation, the effect of a repeal of the one 'referred to' or 'cited' is what is set out in Section 8 Clause (1) of the General Clauses Act, namely:

'8. (1) Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provisions of a former enactment, then references in any other enactment or if any instrument to the provision so repealed shall, unless a different intention appears: be construed as references to the provisions to re-enacted'

The effect of an incorporation, on the other hand, was stated by Brett L.J. in Clarke v. Bradlsugh (1881) 80.B.D. 63, as follows:-

'Where a statute is incorporated, by reference into a second statute the repeal of the first statute by a third does not affect the second'.

The principles thus stated, it was pointed out by the Supreme Court, was analogous to, although not identical with, what is embodied in Section 6A of the General Clauses Act which enacts:

6A. Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the Express omission, insertion or substitution of any matter, then, unless 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'.

In the light of the principles thus stated the Supreme Court took the view in Oathella Sampathu Chetty's case, that on the language of Section 19 of the Sea Customs Act and Section 23A of the Foreign Exchange Regulation Act there was no scope for the argument that there was an incorporation of the provisions of the earlier Act into the later one. It was pointed out that the effect of Section 23-A is to treat the notification by the Central Government under Section 8(1) as if it has been issued under Section 19 of the Sea Customs Act, by the creation of a legal fiction. The reference in Section 23-A to Section 19 of the Sea Customs Act, by the creation of legal fiction. The reference in Section 23-A of Section 19 of the Sea Customs Act cannot have the effect of incorporating the relevant provisions of the earlier Act into the Act of 1947.

5. Based on the above two decisions counsel for the petitioner maintained that there was only a 'reference' or a 'citation' of the provision of the Central Excises and Salt Act into the General Sales Tax Act, and not an 'incorporation' of it or of its provisions. He, perhaps too candidly, stated that if incorporation and not a mere reference or citation were to be found, he had little case. To this aspect, we shall revert a little later.

6. Petitioner's counsel cited the decision of the Madras High Court in State of Tamil Nadu v. East India Rubber Works, Madras - / (33 S.T.C. 399). Exemption was claimed in that case from the provisions of the Madras General Sales Act, 1959 in respect of waterproof cloth like rexine etc. Under Item 4 of the Third Schedule to the Act. The question was whether waterproof cloth' would be covered by the expression 'textile' occurring in the said item. For the assessee the argument was that use of the article as wearing apparel is not decisive of its being 'textile', and despite the different use or purpose to which it was put, the article would still remain textile' so long as the cotton base was present. It was obtained out that 'cotton fabrics' in Item 19 of the Central Excises and Salt Act, 1944 have been understood as fabrics impregnated or coated with cellulose or other plastic materials. For the Revenue it was answered that the proceeding done on the cloth into a new produce which is not a 'textile'. It was stressed that 'textile' normally signified cloth used a wearing apparel. The Madras High Court ruled that there was no warrant to import the definition of 'Cotton Fabrics', in Item 19 of the Central Excises and Salt Act as amended by the Finance Act, 1969 into Item 4 of Schedule III of the Madras General Sales Tax Act. Schedule III had therefore to be construed independently of any definition given under any other statute. So construing, it was ruled that textile' in its ordinary dictionary sense meant, woven, suitable for wearing, textile fabrics. Interpreting the word 'textiles' in its ordinary and popular sense, and not in its primary or technical sense, the learned Judges ruled that the processed articles have different properties and characteristics, are intended for different use, and in commercial circles, they are treated as entirely different from cloth or 'textile'. Hence they would not fall within Item 4 of the Schedule III to the Act. Counsel for the petitioner invited our attention to the Madras Act 37 of 1974 which amended the Madras Statute in consequence of this decision. He further stressed that the principles stated by the Madras High Court that loss of identify, or different use of the article, or change in the properties and characteristics, has not been accepted as the correct test for deciding the question, by the Kerala High Court in Kesavan & Co. v. Assistant Commissioner of Sales Tax (37 S.T.C. 221). It was noticed in that case that Caristrap Rayon cord strapping' is made, using, practically exclusively, rayon cord by a process by which the cords are pasted together by strong glue, which is resilient and elastic to some extent. Item 22 of the I Schedule to the Central Excises and Salt Act, which is attracted by item 7 in the III Schedule of the Kerala General Sales Tax Act, 1963, was held to cover different articles made out of rayon. It was pointed out that it will be idle to apply the identity test to find out whether the thing sold is the thing mentioned as Item 22 in the Schedule.

7. The Gujarat High Court in Hind Engineering Co., Rajkot v. Commissioner of Sales Tax, Gujarat (31 S.T.C. 115) proceeded more of less on the same lines as the Madras High Court. It was there ruled that Rubber beltings manufactured by supreme imposing rubber or rubber compound on both sides of canvas, and used in machineries employed for transmission of power are not 'Cotton Fabrics' within entry 15 of Schedule A to the Bombay Sales Tax Act, 1959. It was further ruled that even if canvas in comprehended within the meaning of 'Cotton fabrics', the process of superimposition of rubber brings about such a basic change in its character, nature and form, that it loses its identity, and is coverted into an altogether different commercial commodity, which cannot be said to fall within the 'cotton fabrics'. The decision was relied on by the Government pleader. But in view of the Division Bench ruling of the Kerala High Court, by which we are bound, we cannot accept the principle of the Madras and the Gujarat decisions.

8. The learned Government Pleader cited the decision of the Supreme Court in Ram Sarup's case (A.I.R. 1963 S.C. 553). The question there considered was whether the definition of 'agricultural land' given in the Punjab Pre-emption Act, 1913. Which adopted the definition in the Punjab Alienation of Land Act, 1900, would be affected by the repeal of the latter Act. Section 3(1) of the 1913 Act defined agricultural land' to mean 'land as defined in the Punjab Alienation of Land Act, 1900'. This latter Act was repealed in 1951, and the argument was that with the said repeal, the right of pre-emption granted by the Punjab in Act 1913 ceased to be available. The Supreme Court referred again, to the principle, stated by Brett L J. in Clarke v. Bradlaugh and held that the repeal of the Punjab Alienation of Land Act, 1900 had no effect on the continued operation of pre-emption, in the pre-amption Act of 1913, and that the expression 'agricultural land' in the latter Act had to be read as if the definition in the Alienation of the Land Act and been bodily transposed into it.

9. The matter received further discussion at the hands of the Supreme Court in Ram Kirpal v. State of Bihar (AIR 1970 S.C. 951) and State of M.P. v. M.V. Narasimhan (AIR 1975 S.C. 1835). In Ram Kirpal v. State of Bihar (AIR 1970 S.C. 951) Section 3(2) of the Imports and Exports (Control) Act, 1947 provided that all goods to which any prohibition under Sub-section (1) apply 'shall be deemed to be goods, of which the import and export had been prohibited under Section 19 of the Sea Customs Act, 1878'. It was pointed out that the effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated section of the earlier Act into the subsequent Act as if these provisions have been enacted in it for the first time. In State of M.P. v. M. V. Narasimhan (AIR 1975 S.C. 1835) the provision considered was Section 2 of the Prevention of Corruption Act, 1947. The said Section enacted that of or the purposes of the 1947 Act 'public Servant' means 'public servant as defined in Section 21 of the Indian Penal Code' Section 21 of the Indian Penal Code before its amendment by the Criminal Law Amendment Act, 1958. Consisted by of only seven clauses. The clauses did not take in an employee under a Corporation or a Govornment company.The same was added of Clause 12 introduced by the amendment Act of 1958, and was substituted by an amendment Act of 1964. As a result of these two amendments, employees of Government companies and of Corporations were brought within the purview of the definition of 'public servant'. The question that arose for consideration was whether these subsequent amendments to the Indian Penal Code would be carried over to the provisions of the Prevention of Corruption Act, 1947. The difference between incorporation of a statute and incorporation of a reference in various provisions was pointed out We may extract paragraph 6 of the judgment of the Supreme Court:

'6. The doctrine of incorporation by reference to earlier legislation has been very aptly described by Lord Esher, M.R., in In re Wood's Estate, Ex parte Her Majesty's Commissioners of Works and Buildings, (1886) 31 Ch. D. 607 at pp. 615-616 where he observed as follows:-

'If a subsequent Act brings into it itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to writ those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1955'.

The Supreme Court noticed again the decision in Secretary of State v. Hindustan Co-operative Insurance Society Ltd. (AIR 1931 P.C. 149). It was ruled that the 1947 Act was undoubtedly a statute supplemental to the Penal Code, and being so, any amendment in the difinition of Section 21 of the Indian Penal Code would have to be read into Section 2 of the 1947 Act Stress was laid on the principle noticed by the Privy Council that whole incorporation of the provisions of one Act into another will not generally attract subsequent amendments or modifications carried out to the incorporated statute, there was an exception that this principle will into apply where the subsequent Act is rendered unworthy or is not able to function effectively. Having regard to the preamble to the 1947 Act that it was passed for the more effective prevention of bribery and corruption, it was ruled that the amendment to the Penal Code has to be read into the incorporated provision also. The legal position was summarised as follows:

'On a consideration of these authorities, therfore, it seems that the following proposition emerges:

Where a subsequent Act incorporates provisions of a previous Act than the borrowed provisions become an integral and independent part of the subsequent 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 subsequent Act and the previous Act are supplemental to each other,

(b) Where the two Acts are in pari materia;

(c) Where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and inaffectual; and

(d) Where the amendment of the previous Act, either expressely or by necessary intendement, applied the said provisions to the subsequent Act.' [para 16]

10. Counsel for the petitioner stated that the words 'as defined by the Central Excises and Salt Act, 1944', would not amount to 'incorporation' but only to a reference' or a citation' as understood in this branch of the law, and as expounded by judicial decision. We notice that almost the same expression was judicially construed in Ram Sarup's case (AIR 1963 S.C. 553). The same words were also used in Section 2 of the Prevention of Corruption Act which was considered in State of M.P. v. M.V. Narasimhan (A.I.R.1975 S.C. 1935). In both these cases it was ruled that the subsequent amendments and modifications had to be taken note of in construing a provision which had been incorporated. In Craies on Statute Law Seventh Edition at page 223 the position Is thus stated:

'Incorporation of earlier enactment:

The effect of bringing into a later Act, by reference, sections of the earlier, Act is to introduce the incorporated Sections of the earlier Act into the later Act as if they had been enacted in it for the first time. Consequently, when an Act of 1855 incorporated sections of an earlier Act of 1840 those sections were read so as to take effect as if they had been passed in 1855 and Lord Esher MR. said: 'If a subsequent Act bring into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to writ those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all. For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855.XXX XXX XXX XXX1

In Halsbury's Laws of England Third Edition Volume 36 page 404 paragraph 611 the position is thus stated:

'Express incorporation of earlier provisions:

Where a statute incorporates by reference the whole or any part of an earlier statute, the provisions so incorporated are in general to be construed as they would be if set out in full in the later statute. Where a general Act is incorporated with a special Act. Subsequently passed relating to a particular subject matter, a provision in the special Act prevails over an inconsistent provision in the general Act Where particular sections of an earlier statute are expressly incorporated into a later statute, there is a conflict of authority as to whether other parts of the earlier statute which are not incorporated may or may not be referred to in construing the sections which are incorporated; it seems probable that, on the principles already referred to in connection with earlier statutes inpart of materia, they may be referred to, but only where there is an ambiguity or obscurity in the incorporated sections which cannot otherwise be resolved'.

In the light of the principles which have become crystallized by the Judicial decisions and been expounded by the leading authorities, let us examine the position. In Ram Sarup's case (A.I.R. 1963 S.C. 853) and in State of M.P. v. M.V. Narasimhan (A.I.R.1975 S.C. 1835) the mode chosen by the legislative to express itself, was practically the same as we have here, viz., 'as defined in the (Central Excises and Salt Act)'. In the earlier case, the question was regarding the survival of that we may call the 'built in' or 'embanked' provision after the repeal of the parent statute from which it was 'built in' or 'embanked', ft was ruled mis would make no difference. That is understandable, whether the words be words of in-corporation or of reference. In State of M.P. v. M.V. Narasimhan (AIR 1975 S.C. 1835) the definition of 'public Servant' in the Prevention of Corruption Act, 1947, was held to be an incorporated definition, nevertheless, it was ruled that the amendments affected by the subsequent clauses of the Indian Penal Code to the definition of the term would get added to the provisions of the Prevention of Corruption Act as well. While the general principle is that an incorporated or impregnated foetus of the provision, neither grows, nor shrinks, nor dies, with the changes or even the death, of the parent, this principle would not apply, inter alia, where the two Acts are supplemental to each other; and where, to confine the impregnated provisions to a static state would render the containing Act ineffectual and unworkable. This principle was succinctly stated by the Privy Counci in the passages noticed supra In para 3.

11. In the light of the principles this formulated, it seems unnecessary for us to labour the point whether we are confronted in these cases with a 'reference' or 'citation' on the one hand, or an 'Incorporation' oh the other, of the definition of 'Cotton Fabrics', In Item 19 of the Schedule I of the Central Excises and Salt Act, into the provisions of Section 9 read with Item No. 7 of the III Schedule of the General Sales Tax Act, 1963. If the definition was merely by way of 'reference' or 'citation', the referred or cited provision, grows and shrinks with the changes in the parent statute. Even in the case of an incorporated definition, while the general principle is that the incorporated, definition remains static and is unaffected by the developments of fluctuations of the parental sources from which it was incorporated, two of the well recognised exceptions formulated by the Supreme Court in State of M.P, v. M. V. Narasimhan (AIR 1975 S.C. 1835) seem to apply here, is, exceptions (a) and (c). (see para 9 supra). The concept of 'Cotton Fabrics' in the Central Excises and Salt Act seems to be integrally linked with the provisions of the General Sales Tax Act, and we do not think that we would be justified inregarding the latter Act as unaffected by the growing concept of the term 'Cotton Fabrics' in the Central Excises and Salt Act. We feel too, that unless the extended definition of the Central Excises and Salt Act is imported into the Sales Tax Act, the latter Act would become unworkable and ineffectual. We therefore allow these Tax Revision Cases, set aside the orders of the Appellate Tribunal, and send these cases back to the Tribunal to determine the amount due by way of refund to the petitioners, in accordance with law and in the light of the observations contained in this judgment. There will be no order as to costs. Issue carbon copies to counsel.


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