ORDER
G.A. Brahma Deva, Member (J)
1. All these appeals arise under the provisions of the Gold (Control) Act, 1968. This Act was repealed on 6th June, 1990 which reads as under : –
“The following Act of Parliament received the assent of the President on the 6th June, 1990, and is hereby published for general information : –
THE GOLD (CONTROL) REPEAL ACT, 1990
No. 18 OF 1990
[6th June, 1990]
An Act to repeal the Gold (Control) Act, 1968.
Be it enacted by Parliament in the Forty-first Year of the Republic of India as follows: –
1. This Act may be called the Gold (Control) Repeal Act, 1990.
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 The Gold (Control) Act, 1968 is hereby repealed.”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can hear the appeals as Appellate Tribunal under the provisions of the Gold (Control) Act, when the very Act itself was repealed without saving clause.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 arguments on this preliminary issue.
3. We have heard S/Shree Harbans Singh, Advocate, H.S. Sharma, Consultant, H.R. Sharma, Consultant, M. Gouri Shanker Murthy, A.K. Jain, G.K. Rana, Mrs. Seetharaman, Advocates, learned Representatives on behalf of the parties and Shri G. Bhushan, learned Departmental Representative who joined-with them on this issue of effect of repeal of Gold (Control) Act and jurisdiction of this Tribunal.
4. The Representatives on behalf of the parties as well as Departmental Representative were unanimous on the issue of jurisdiction of this Tribunal and submitted that this Tribunal can hear the appeals arise under the provisions of Gold (Control) Act even after the Act was repealed as there was no contrary provision in the repealed Act and such repealed Act without saving clause is clearly governed by the provisions of the General Clauses Act, particularly with reference to Section 6 of the General Clauses Act. Section 6 of the. General Clauses Act is reproduced below for the sake of ready reference : –
“6. Effect of repeal. – Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: –
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceedings 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.”
They emphasised that this Tribunal was constituted under Section 129 of the Customs Act, 1962, as it was defined in Section 2(aaa) of the Gold Control Act, 1968 that ‘Appellate Tribunal’ means the Customs, Excise and Gold (Control) Appellate 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 be extended to the period of General limitation prescribed under the Limitation Act which is the domain of Civil Courts as it was held by the High Courts and Supreme Court. He said that Limitation Act being a procedural law cannot be equated with General Clauses Act which is a substantial law, though both of them are parts of the common law. Substantive rights vested under the substantial law cannot be barred by the provisions of the special Statute. While interpreting ‘and analysing the respective terms and phrases of the special Statutes they have to be understood in the sense used in the other enactments though they are part of the common law unless contrary intention appears in the very Statute. He contended that Contract Act, Sale of Goods Act, Partnership Act and other Acts which are substantial in nature throw sufficient light in dealing with the provisions of the special Statute and special Statutes cannot be isolated without referring such allied Acts on the ground that they are sources of common law.
5. The learned Representatives appearing for respective parties in these cases have cited a series of decisions to substantiate their arguments on point of jurisdiction of this Tribunal in hearing the appeals even after the Gold (Control) Act was repealed and effect of repeal of enactment with reference to Section 6 of the General Clauses Act. They heavily relied upon the following decisions : –
1. Amadalavalasa Co-operative Agricultural and Industrial Society Ltd. and Anr. v. Union of India and Anr. – AIR 1976 S.C. 958.
2. New India Insurance Co. Ltd. v. Smt. Shanti Misra – A1R 1976 SC 237.
3. Rajasthan Worsted Spinning Mills Ladnu v. Collector of Central Excise, Jaipur – 1990 (47) ELT 483 (Tri.) – Order No. E-13/90-D in Appeal No. 734/84-D(CEGAT).
4. Jayantilal Amratlal v. Union of India and Ors. – AIR 1971 S.C. 1193 : 1974 (4) SCC 174.
5. Royala Corporation v. Director of Enforcement – AIR 1970 SC 494.
6. Atma Steels Pvt. Ltd. v. Collector of Central Excise -1984 (17) ELT 331.
6. We have considered the submissions, citations and relevant provisions of the Statutes.
7. The Gold (Control) Act, 1968 which came into force from 1968 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 case of Keshavji Ravji & Co. v. C.I.T. 1990 (82) CRT-SC (123) the Supreme Court has observed that “To the extent that the Statute expressly or by necessary implication departs from the general law, the latter cannot be invoked to dispense the effect of the Statute. But if there is no such statutory departure the general principles operating in that branch of law determines the nature of legal relationship.”
In the case of Amadalavalasa Co-operative Agricultural and Industrial Society Ltd. and Anr. v. Union of India (supra) while dealing with the liability under repealed Acts of Emergency Risks (Goods) Insurance Act and Emergency Risks (Factories) Insurance Act, it has been held that: –
“The fact that no supplementary policy was issued before the expiry of the Acts is no answer for not fulfilling the obligation of the insured to pay the premiums in accordance with the correct insurable value of the factory or goods as determined under the Third Schedule to the Schemes. Therefore, if under Section 5 of the Factories Act, or under Section 7 of the ‘Goods Act’, the liability to pay the premiums on the full insurable value was incurred before the expiry of the Act. Section 6 of the General Clauses Act would enable the ascertainment of the extent of liability for the evaded premiums by an officer who was authorised when the Act was in force or by an officer authorised after the expiry of the Act. The principle behind Section 6 of the General Clauses Act is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation, legal proceedings, remedy, may be instituted, continued or enforced as if the Acts had not expired.”
Further in the case of Jayanthilal Amratlal v. Union of India (supra) while dealing with Rule 126 of the repealed Gold Control Rules, 1963, it has been held that: –
“There are no provisions in the Gold (Control) Act, 1968 which are inconsistent with Rule 126(1) (10) of the “Rules”. That being so, action taken under that rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of Section 6 of the General Clauses Act. But the provisions therein are not inconsistent with the provisions in Section 6 of the General 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 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 with or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.”
Again in the case of Garikapatti Veerayya v. N. Subbia Choudhty and Ors. AIR 1957 SC 540, it was observed by the majority and emphasised that “this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.”
8. The observations and findings given by the Supreme Court in the above cases strengthens our view and following ratio of those decisions we hold that this Tribunal is competent to hear the appeals arise out of pre-existing Gold (Control) Act, 1968 even after the Act was repealed in the absence of saving clause. Accordingly, this preliminary issue on point of jurisdiction was resolved.
9. In the view we have taken the Registry is directed to post all these cases to hear on merits.
S.K. Bhaluagar, Member (T)
10. I have gone through the order proposed by the Hon’ble Member (Judicial) Shri G.A. Brahma Deva.
11. I agree with him that in view of the repeal of the Gold (Control) Act, 1968 without any saving clause an important question of law regarding jurisdiction of this Tribunal to hear pending appeals has arisen; And this question can be considered by us suo motu for the reasons indicated by him. However, with due respects to him, I am of the opinion that the effect of repeal is required to be considered in a larger perspective, with reference to the context provided by the circumstances leading to the repeal, the history of legislation and the statement of objects and reasons of the statute.
12. Hence to begin with, I would like to make a brief mention of the historical background See (i) Jayantilal Amrtlal v. Union of India and Ors. AIR 1971 SC 1193 (ii) Justice S.R. Roy’s ‘Commentaries on Gold Control Act’ 1968 (iii) Cen-Cus ‘Manual of Gold Control’. relating to Gold relating to Gold Control See (i) Jayantilal Amratlal v. Union of India and Ors. AIR 1971 SC 1193 (ii) Justice S.R. Roy’s ‘Commentaries on Gold Control Act’ 1968(iii) Cen-Cus ‘Manual of Gold Control’.
13. The Gold (Control) was first introduced by way of an amendment to Defence of India Rules resulting in incorporation of Part XIIA [Called as Gold (Control) Rules, 1963] therein.
14. Subsequently, these rules were repealed and the Gold (Control) Act, 1965 was passed This Act was passed but not given effect to due to change in policy; And Defence of India Rules were merely amended. Section 43 of this Act reads as follows : –
“43(1). As from the commencement of this Act, the provision of Part XIIA of the Defence of India Rules, 1962 shall stand repealed and upon such repeal, Section 6 of the General Clauses Act, 1897, shall apply as if the said part were a Central Act.
(2) Notwithstanding 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 :-
“(1) 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, any notification, under direction appointment or declaration made or any notice, licence or certificate issued or permission authorisation or exemption granted or any confiscation adjudged or penalty or fine imposed or any forfeiture ordered or any other thing done or any other action taken under or in pursuance of the provisions of Part XIIA of the Defence of India Rules, 1962, so far as it is not inconsistent with the provisions of this Ordinance be deemed to have been made.”
16. On August 24, 1968, the Parliament passed the Gold Control Act, 1968, repealing and replacing the Gold Control Ordinance, 1968. Section 116 which provides for repeal and saving reads as follows : –
“116(1). The Gold Control Act, 1968 (18 of 1968) and the Gold (Control) Ordinance, 1968 (6 of 1968) are hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken, including any notification, order or appointment made, direction given, notice, licence or certificate issued, permission, authorisation or exemption granted, confiscated adjudged, penalty or fine imposed, or forfeiture ordered, whether under the Gold (Control) Ordinance, 1968 or Part XIIA of the Defence of India Rules, 1962, shall in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done, taken made, given, issued, granted, adjudged, imposed, or ordered, as the case may be, under the corresponding provisions of this Act, as if this Act had commenced on the 29th June, 1968.”
17. Now the Gold Control Act, 1968 has been repealed by the Gold Control Repeal Act, 1990 (but not replaced by any other enactment).
18. It is apparent from the above account that,
(1) All these measures were temporary in character.
(2) They were repealed and replaced after varying periods except in the last instance when Gold Control Act, 1968 was repealed without replacement.
(3) Great care was taken to preserve the continuity of the proceedings pending at the time of repeal and for this purpose a saving clause was invariably incorporated in different succeeding enactments except in the last instance.
Further,
(i) Section 43(1) of Gold Control Act of 1965 and Section 117 of Gold Control Ordinance, 1968 made, in addition, a specific reference to Section 6 of the 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 Anr. v. Vasantsen Dwarkadas and Ors. 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 interpreting the legislation if the words used therein are clear enough. But the statement of objects and reasons can be referred to for the purpose of ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation aimed at.” (Para 23)
Per. Hon’ble Justice J.L. Kapur:
“In construing an enactment and determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account to ascertain the intention of the legislature such as the History of the Act, the reasons which led to its being passed the mischief which had to be cured as well as the cure as also the other provisions of the statute. That is the rule in Heydon ‘s case (1584) 76 ER 637 which was accepted in R.M.D. Charanbaugwalla v. Union of India – (S) AIR 1957 SC 628 at page 631”. (Para 38)
2. Bombay High Court Judgment – in the case of Gangadhar Sadashiorao Watane v. State of Maharashtra reported in AIR 1976 Bombay Page 13 : –
“The Statement of objects and reasons of a statute may and does often furnish valuable historical material in ascertaining the reasons which induced the Legislature to enact a statute. It can legitimately be taken into account in ascertaining the intention of the legislature such as the history of the statute, the reasons which led to its being passed, the mischief which it was intended to sup-press and the remedy provided by the statute for curing the mischief. It is useful to find out as to what was the law before the Act was passed, what was the mischief or defect for which law had not been provided, what remedy the legislature had provided and the reasons for the remedy.”
20. It is apparent from the above citations that the history of legislation referred to above and the statement of objects and reasons of the statute could be legitimately taken into account by us for ascertaining the legislative intention. Hence we may turn to the statement of objects and reasons mentioned in the Gold (Control) Repeal Bill, 1990 which reads as follows : –
21. STATEMENT OF OBJECTS AND REASONS :
“Gold Control which regulated the domestic trade and movement of gold within the country was introduced on 9th January, 1963 as part of the Defence of India Rules. Later on, the Gold (Control) Act, 1968 was enacted with the broad objectives of 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 said object.”
22. A reading of the above statement shows that one possible view could be that prima facie, the Parliament wanted to simply put an end to the sorry state of affairs depicted therein.
23. But before we proceed with this line of thought any further, let us look at the rival point of view that there was no necessity to provide for a saving clause as the pending proceedings could in any case be continued in view of Section 6 of the General Clauses Act and the authority which previously existed under the repealed Act could continue to deal with the pending matters as if the Act had not been so repealed.
24. Since all the appellants as well as the respondents as also my learned brother Hon’ble Member (Judicial) Shri Brahmadeva have referred to the General Clauses Act and considered it as applicable in the present situation let us first examine this Act and discuss the implications of the judgments and orders relied upon before we proceed further in the matter.
25. It is observed in this connection that only Section 6 of this Act has been referred to by the learned Counsels and the learned SDR. However I feel that two other Sections, namely, Sections 3(19) and 24 are also significant as we are concerned with the effect of repeal on the Gold Control system as a whole and this system obviously includes not merely the Act but also the rules, notifications and orders, etc. issued under the Act.
26. These sections are reproduced below for the convenience of reference.
Section 3(19):
“Enactment” shall include a Regulation (as hereunder defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provisions contained in any Act or in any such Regulation as aforesaid.
6. Effect of repeal:
Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (.a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed’, or
(d) affect any penalty, forfeiture or punishment incurred in respect 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 of the above provisions clearly shows that Section 6 covers only repeal of enactment as defined in Section 3(19) i.e. only an Act or regulation and does not cover the “rules”. This view has also been upheld by the Hon’ble Supreme Court in the case of Rayala Corporation (P) Ltd. and Anr. v. The Director of Enforcement, New Delhi reported in AIR 1970 SC 494 in the following words : –
“that Section 6 only applies to repeal and not to omissions and applies when the repeal is of a Central Act or regulation and not a rule” (Para 15).
(ii) For rules, notifications, orders, etc., we have to see Section 24 (and not Section 6). A reading of Section 24 again refers to continuation of orders, etc. issued under enactment repealed and re-enacted i.e. it saves the rules, notifications and orders, etc, only if after repeal of an enactment it is simultaneously re-enacted or replaced and there is no inconsistency between the repealed and the re-enacted provisions and not otherwise.
(iii) This is important as rules, notifications and orders are an essential part of the Gold Control Scheme.
(iv) Further Section 6 also emphasises the intention of the legislature and does not save even an enactment if “a different intention appears” therefrom.
28. Having noted the above legal position, we may now proceed to take up the cases cited in support of the contention that the pending proceedings continue even after repeal and have to be dealt with as if the Act had not lapsed. Let us see, whether the cited cases really support this point of view or are distinguishable and supportive of a different point of view.
1. Rayala Corporation (P) Ltd. and Anr. v. The Director of Enforcement, New Delhi AIR 1970 SC 494:
I find that this case is distinguishable. In fact on going through the judgment, I observe that it supports the rival point of view as would be evident from the following:
“This case is not about the repeal of any enactment. It is only about omission of Rule 132(A) (2) of the Defence of India Rules (by way of ah amending provision) and its replacement by a corresponding Section in the repealing Act.”
Further the observations cited were made by their Lordships with reference to Clause II of the amendment rules which was in the nature of a saving clause. Hence this case is different from the present one which 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 Act, 1939 and the Ordinance No. XII of 1946 which had amended Section 1(4) of that Act.
Their Lordships have also referred to the case of J.K. Gas Plant Manufacturing Company (Rampur) Ltd. v. King Emperor reported in 1947 FCR 141 : AIR 1947 FC 48 and further stated that, “the General rule in regard to the expiration of the temporary statute is that “unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. Therefore, offences committed against temporary Acts must be prosecuted and punished before the Act expires and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate”.
Hence this judgment is distinguishable and supportive of a different point of view as aforesaid.
2. Tribunal’s Larger Bench Order No. E/13/90-D dated 30-11-1989 in the case of Rajasthan Worsted Spinning Mills, Ladnu (Raj.) v. Collector of Central Excise, Jaipur 1990 (47) ELT 483 (Tri.): –
This case is also distinguishable inasmuch as it also does not deal with repeal of any enactment but merely with the issue of the effect of emendment of a rule relating to time-bar and largely concerns itself with the point as to whether such an amendment would have a retrospective effect.
In my opinion omission of a rule and its substitution by an amending rule creates a situation distinct and distinguishable from that of repeal or expiry of a statute and this view finds support from the judgment of the Supreme Court in the case of Rayala Corporation (supra). Hence this order of the Tribunal was distinguishable as observed above.
3. Amadalavalasa Co-operative Agricultural and Industrial Society Limited and Anr. v. Union of India and Anr. AIR 1976 SC 958:
This case is also clearly distinguishable as evident from the following:
This case arose out of the requirement for Insurance under the Emergency Risks Goods Insurance Act 62 of 1962 and Emergency Risks Factories Insurance Act 63 of 1962.
Section 1(3) of the later Act provided inter alia that “the expiry of the Act shall not affect anything done or omitted to be done before such expiry and Section 6 of the General Clauses Act, 1897, shall apply upon the expiry of the Act as if it were 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 Ors. v. Collector of Central Excise, Chandigarh and Ors. 1984 (17) ELT 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 10A and substitution thereof by succeeding provisions and by omission of Rules 11 and 173(J) and their substitution by succeeding provisions and the prospective v. retrospective effect of the new provisions.
As we have already seen omission and substitution of rules is distinguishable from repeal or expiry of an Act and in the present case we are not concerned with the retrospective effect of any rule. Hence this case is distinguishable.
6. Jayantilal Amratlal v. The Union of India and Ors. AIR 1971 SC 1193:
This case is also distinguishable inasmuch as it deals with enactment which had a saving Clause (unlike the present one). Further the Court applied Section 6 of the General Clauses Act as the provisions of the repealed and the repealing Act which replaced it were consistent and ensured continuity of the Gold Control System as a whole as such. It may be recalled that this case deals with repeal and replacement of Gold Control Ordinance which was an Act by itself and which replaced the Defence of India Rules Part XIIA (i.e. the Gold Control Rules 63) viewed as an Act by a deeming clause. Further it had a saving clause which referred to Section 6 of the General Clauses Act; and the Gold Control Act 68 which replaced and repealed this ordinance also had a saving clause; and the Supreme Court found that the provisions of Gold Control Act 68 were not inconsistent into that of the Ordinance and the rules and the intention was to continue the proceedings.
It is significant that the Hon’ble Supreme Court has emphasised the legislative intent and observed inter alia that “as the Gold Control Act does not exhibit a different or contrary intention proceedings initiated in the repealed law must be held to continue”.
The paragraph quoted by the learned Counsel and reproduced by my learned brother has to be read and understood with reference to the above context. It is nobody’s case that merely because there was no saving clause the rights and liabilities had lapsed; It is our view that they have abated in view of the clear legislative intent evident from the statement of objects and reasons; And this judgment if any thing justifies our effort to adjudge the effect of repeal in the light of legislative intention.
7. Garikapati Veeraya v. N. Subbiah Choudhry and Ors. AIR 1957 SC 540: This case is also distinguishable as
(1) 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 Government of India Act, 1935 was subsequently repealed and ‘replaced’ by the Constitution of India, and the President promulgated the adaptation law order of 1950 which came into force simultaneously with the Constitution. By this order the CPC was amended and “It is to be noted that Sections 109 and 110 of the Code of Civil Procedure were not deleted altogether but were modified only”. Further this adaptation was subject to the provisions of Clause 20 of the Adaptation order which was in the nature of a saving clause and the Hon’ble Supreme Court has itself observed in Para 29 that “the Government of India Act, 1935 was repealed yet notwithstanding such repeal the provisions were continued in force under Article 371(1) subject to other provisions of the Constitution and the fact that the adaptation order modifying the Code of Civil Procedure did not, by virtue of Clause 20 of the order affect any right, privileges, obligations or liability already acquired that accrued or incurred under the existing law” (Para 27). It was in this context that the observations quoted by my learned brother are required to be read and understood. Further it should also be noted that in the same judgment the Supreme Court has mentioned that “the repeal of Government of India Act, 1935 necessarily involved the abolition of the Federal Court which was the creature of that Act” (Para 27). Hence on the same analogy the repeal of the Gold Control Act necessarily involves the abolition of the appellate authority vested in the Customs, Excise and Gold (Control) Appellate Tribunal, i.e., its capacity to hear Gold Control Appeals.
29. Thus we find that none of the cases cited by the learned Counsels and the SDR support their point of view. On the contrary the cited cases only butteress the rival point of view according to which the Act itself, the rules, the notifications, the orders, etc., issued under the Act and the authorities and the institutions created by the Act as also the pending proceedings none whatsoever survive the repeal as evident from the circumstances leading to repeal and the legislative intention. Secondly the Gold Control Mechanism as a whole simply came to an end and was abolished on 6-6-1990.
30. Before we examine this view any further, let us revert for a while to the opposite point of view to meet the point, regarding the creation of this Tribunal and its 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 Ors. AIR 1957 SC 540 as already mentioned above.
33. The arguments that the saving of the enactment by Section 6 of the General Clauses Act automatically means and implies the saving of the rules and notifications or orders issued thereunder has already been shown to be incorrect. But let us for a moment consider, for arguments sake, that Section 6 of the General Clauses Act applied even then it could not be forgotten that this section itself emphasises the intention of the legislature for the wordings in the opening sentence of Section 6 of the General Clauses Act are “unless a different intention appears”.
34. As we have seen, the aspect of intention had also been emphasised by various High Courts and the Hon’ble Supreme Court and their judgments and orders allow us to take into account the legislative history and statement of objects and reasons to find out the legislative intent. We may also note at this stage that Gold Control law is not an ordinary law but one which has been described in the statement of objects and reasons as a regressive law which gave rise to considerable dis-satisfaction in the minds of the public and caused hardship and harassment on account of the rigours which it imposed. These resounding words stare us in the eye and make the intention of the legislature patently clear. Evidently the Parliament has repealed an Act which was the cause of so much suffering and which had proved futile and incapable of proper administration with a view to close this ugly/troublesome chapter for good and say ‘Ameen’.
35. It is obvious that once realisation of the sufferings and hardships being caused to the people had dawned, the Parliament of a Democratic Republic decided to put to an end the system which brought them about. Hence Hon’ble Parliament allowed the Act to simply expire without any saving clause and this repeal had the effect of bringing to a halt all the proceedings which had been initiated earlier but had not been concluded till the date of repeal and all the authorities created under the repealed statute simply ceased to exist. Hence there was no question of their executing any further ‘jurisdiction’. This view finds support from the judgments and orders of the various High Courts cited below.
1. The Assam High Court in the case of Sythat Co-op. Central Bank Limited v. Dhirendra Nath De Reported in AIR 1956 Assam Page 66:
“The repeal of an Act completely wipes out the law which is the subject-matter of the repeal. It is to be deemed as having existed only for those actions which were commenced, prosecuted and concluded. Even pending actions can not be continued. The High Court quoted with approval the view of Lord Tenterden :
“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 Khan 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 the repealed Act . and is unable to deliver the judgment therein. The effect of repealing a statute is to obliterate it as completely from Parliament as if it had never been passed. It must be construed as law that never existed, except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law. If a statute is unconditionally repealed without a saving clause in favour of pending suits, all actions must step where the repeal finds them and if final relief has not been granted before the repeal goes into effect, it cannot be granted afterwards. A similar principle applies to a law conferring jurisdiction. It has been held repeatedly that the repeal of a statute giving jurisdiction to a Court deprives it of the right to pronounce judgment in a proceeding previously pending. According to Blackford J., whenever a statute from which a Court derives” its jurisdiction in particular cases is repealed the Court has no right to proceed under the repealed statute even in suits pending at the time of the repeals, unless the right is expressly saved by the repealing Act or by a General Act, regulating the repeals. To mitigate this harsh rule of common law, the legislature considers it expedient from time to time to enact saving clauses which expressly provide that whenever a statute shall be repealed, such repeal shall not affect pending actions founded thereon”.
36. From the above discussion, it is clear that in view of the facts and circumstances leading to repeal of the Gold Control Act, 1968, the effect of repeal (without a saving clause) is that the Gold Control Act, 1968 has expired; all the pending proceedings have come to an end as they were; and the erstwhile authorities have ceased to exist. Hence ‘the ‘appeals’ pending before us have simply abated and the capacity of this Tribunal to act as Gold Control Appellate Authority has been extinguished.
37. It is held accordingly.
As a difference of opinion has arisen between the Hon’ble Member (Judicial) and the Member (Technical) on the effect of repeal, the matter is submitted to the Hon’ble President in accordance with the established CEGAT procedure to refer it to a third Member or to constitute a Larger Bench in view of the importance of the matter as may be deemed appropriate.
Point of difference
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.
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. Calcutta and Bombay Bar Associations have sent written submissions. Shri R.K. Jain, learned Consultant has appeared on behalf of the Delhi Bar Association. He has pleaded that after the repeal of the Gold Control Act on 6-6-1990, the following situation can arise : –
(i) Jurisdiction of the adjudicating authority;
(ii) Appeals pending with the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) – whether the CEGAT has jurisdiction or not;
(iii) Gold Control Act was repealed on 6-6-1990. What will be the position of the orders passed prior to 6-6-1990 but the appeals are filed after 6-6-1990;
(iv) A situation may arise where the Order-in-Original has been passed by Adjudicating Authority after the repeal of the Gold Control Act viz. after 6-6-1990.
Shri R.K. Jain, learned Consultant stated that in essence Bombay Bar Association has touched the following points : –
(i) Original jurisdiction;
(ii) Supports the order passed by Technical Member;
(iii) Section 6 of the General Clauses Act not applicable.
Shri Jain further argued that the Calcutta Bar Association has taken the following stand: –
(i) Gold Control Act is not temporary Act;
(ii) Section 6 of the General Clauses Act applies;
(iii) Appeal is a vested right. When there is a right, there is a remedy;
(iv) Section 6 of the General Clauses Act does not save the provision of repeal enactment but only saves the rights, entitlements and liabilities which have been approved under the repeal enactment;
(v) Section 24 of the General Clauses Act not applicable;
(vi) Ratio of decision in the case of Royle Corpn. reported AIR 1970 SC 494 not applicable.
Shri R.K Jain argued on behalf of the Delhi Bar Association and stated that Gold Control Act has been repealed without retrospective effect and as such it is prospective in operation; (2) Repeal is not followed by legislation; (3) The existing rights under the Gold Control Act not effected as there is no contrary intention. Section 6 of the General Clauses Act applies. Shri Jain argued that the Section 6 of the General Clauses Act is applicable and this 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) ELT 1277.
AIR 1957 Privy Council 242.
AIR 1957 SC 540.
1984 (16) ELT 126.
AIR 1960 SC 980
AIR 1968 SC 13
AIR 1975 SC 1843.
Shri Jain has argued that Section 24 of the General Clauses Act lays down the continuation of orders etc. issued under enactment repeal and re-enactment. He pleaded that Gold Control Act has been repealed and there is no new legislation. Shri Jain argued that Section 3(19) of the General Clauses Act defines enactment and the word enactment shall include a regulation as hereinafter defined and any regulation of Bengal, Madras or Bombay Courts and shall also include any provision contained in any Act or in such regulation as aforesaid. He has referred to Para No. 16 of the Technical Member’s order which appears on internal page No. 19 of the order where the Technical Member has observed that two Sections, namely, Section 19 and 24 are also sufficient and were concerned with the effect of repeal on the Gold Control system as a whole and this system obviously includes not merely the Act but also the rules, Notifications and orders etc. issued under the Act. Shri Jain argued that the Section 3(19) has got no relevance and the Section 6 does not provide for the machinery for the implementation of the Act. Shri Jain has pleaded that Section 24 of the General Clauses Act has been reproduced by the Member (Technical) on internal page No. 21 of the Order-in-Original. Section 24 is meant for fresh legislation and Section 24 does not abridge provisions of the Section 6. In support of his arguments, he has referred to the following judgments : –
AIR 1975 Delhi 258.
Shri Jain has argued that the Tribunal was constituted under the Customs Act, 1962. He has also referred to the following judgments : –
AIR 1962 SC 1 621.
He has also referred to the provisions of Section 81 of the Gold Control Act and stated that in terms of the provisions of Section 81 the order passed by Collector of Customs and Central Excise is appealable and Collector has also got right to file an appeal. Shri Jain in a nutshell argued, that after the repeal of the Gold Control Act in terms of provisions of Section 6 of the General Clauses Act the Tribunal continues to be an appellate forum and has powers to decide the appeal.
40. Shri B.B. Gujral, learned advocate has appeared in the case of Shri Peare Lal Sood v. Collector of Customs, New Delhi in Appeal No. G/32/90-NRB. Shri B.B. Gujral argued that the case is pending since 1975. He stated the background of the Gold Control Act. He argued that Gold Control Act was an economic and social measure. It was for checking 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 Section 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 following judgments : –
AIR 1957 Madras 695 at 698.
AIR 1965 Madras 166.
AIR 1963 Calcutta 614.
AIR 1955 Supreme Court 84.
Shri Gujral argued that all the appeals filed shall be deemed to be pending before the Tribunal even after the repeal of the Act. He has pleaded that Section 24 of the General Clauses Act is not applicable. He has again referred to the Page 365 of ‘Interpretation of Statute’ by G.P. Singh (4th Edition). Shri Gujral referred to judgment of the Supreme Court reported in AIR 1965 SC 932. Shri Gujral argued that after the repeal subordinate legislation goes. He has also argued that in case it is held that view of the Technical Member is accepted then Section 6 of the General Clauses Act will become redundant. He has argued that the statute has to be interpreted in a harmonious manner and after the repeal the right vested by the erstwhile statute continues and as such the forum also continues.
Shri Harbans Singh, learned Advocate has appeared on behalf of the appellants at Serial Nos. 1 to 5 and 12. Shri Harbans Singh, learned Advocate supports the order passed by the Member (Judicial). He has referred to the aims and objects and reasons for the repeal of the Gold Control Act. He argued that looking at the history is not permissible. He has referred to the following judgments : –
AIR 1957 SC 907.
AIR 1959 SC 135.
He has argued that there is no ambiguity at all and it is perpetual act and not a temporary act. He has argued that even after the repeal of the Gold Control Act the Tribunal has got powers to hear the appeals – pending appeals and appeals to be filed in future.
Shri M. Gouri Shankar Murthy, learned Advocate has appeared on behalf of M/s. Hari Shankar and Sunil Kumar at Serial No. 10. He has referred to the provisions of Section 6 of the General Clauses Act. He pleaded that rules made under an Act do not come within the purview of the Section 6. The repeal should be of an Act. He has referred to a judgment of Supreme Court in the case as reported in AIR 1971 SC 1193. He has argued that Defence of India Act came into force w.e.f. 12-12-1962. He argued that an ordinance cannot be equated with an Act. the same way the rules can also not be equated with an Act and there is no question of applicability of Section 24 of the General Clauses Act. Shri Murthy, learned Advocate argued that it will be a grave error to 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 have also taken into consideration the arguments advanced by Sarva Shri B.B. Gujral, Harbans Singh and G.S. Murthy, learned Advocates. For the proper appreciation of the correct position Section 6 of the General Clauses Act is reproduced below: –
“6. Effect of repeal. – Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not –
(a) revive anything not in force or existing at the time at which repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so 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.”
We have also looked into the case law cited by the Consultant as well as learned Advocates. Hon’ble Supreme Court in the case of Shri T.S. Balia v. T.S. Rangachari reported in AIR 1969 SC 701 had held that:
“Whenever there is a repeal of an 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. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests 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 ‘savings’ provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General Clauses Act, 1897.
The right to carry forward losses which had accrued under the repealed Indian Income-tax Act of 1922 is not saved expressly by Section 297 of the Income-tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(c) of the General Clauses Act, 1897, saves accrued rights unless they are taken away by the repealing statute. Section 297 does not take away any of the rights either expressly or by implication.”
43. After taking into consideration, the judgments cited by the learned Advocates and the legal position discussed by us we are of the view that in view of the repeal of the Gold Control Act, 1968 without saving clause this Tribunal still has got the jurisdiction to hear the pending matters. We are of the view that Gold Control Act is a perpetual Act and was not a temporary legislation and the pending proceedings are saved by Section 6 of the General Clauses Act. Accordingly, we agree with the view of the Member (Judicial), Shri G.A. Brahma Deva.
FINAL ORDER
44. In accordance with the majority opinion it is held that the jurisdiction to hear appeals arising out of the Gold (Control) Act, 1968 continues to lie with this Tribunal even after the repeal of the said Act without a saving clause.
