1. This is a reference to the larger Bench for resolving differences in the view taken by the Bench in the matters of M/s. Steel Rolling Mills of Hindustan (P.) Ltd., Calcutta v. Collector of Central Excise, Calcutta - 1984 ECR 1527 (CEGAT) and Moti Lal & Co., Thane v. C.C.E., Bombay - 1984 (15) E.L.T. 157 and the order of Special Bench 'C' of the Tribunal in C.C.E., Bombay v. Rohit Pulp and Paper Mills Ltd., Surat - 1984 (4) ETR 58.
2. The point for difference arose as under :- In the appeals Nos. 365 and 365-A/78-B-I, the show cause notice dated 29-12-1978 proposing to review the orders-in-appeal Nos. 2387 of 77 and 2388 of 77 dated 19-12-1977 passed by the Appellate Collector of Central Excise, New Delhi was issued by the Government of India beyond six months of the order proposed to be revised. In appeal No. 366/78-B-I the show cause notice dated 24-3-1979 was issued by the Government of India proposing to review the order-in-appeal No. 424-CE/78 dated 1-6-1978 passed by the Appellate Collector of Central Excise, New Delhi. In appeal No.358/78-B the show cause notice dated 15-11-1978 proposing to review the Order-in-Appeal No. 2427 and 2428-CE/77 dated 9-12-1977 passed by the Appellate Collector of Central Excise, New Delhi was issued after the period of six months. On the date of issue of the show cause notices, Section 11A of the Central Excises and Salt Act, 1944 had been passed into law, although it came into force on 17-11-1980. The third proviso to Section 36 which is analogous to Sub-section (3)(b) of Section 35A made reference to time-limit stated in Section 11A. Section 35A(3)(b) made similar reference to the time-limit in Section 11A.3. In 1984 (15) E.L.T. 157 the Tribunal has held that the mere fact that Section 11A had not come into force would not bar application of the time-limit specified therein for the purpose of Section 35A(3)(b).
The Tribunal followed the decision of the Delhi High Court in the Associated Cement Companies Ltd. v. Union of India - 1981 (8) E.L.T.421 which had later been followed by the Bombay High Court in the matter of Corn Products Co. (India) Ltd. and Anr. v. Union of India and Anr. - 1984 (16) E.L.T. 177. But in the matter of C.C.E., Bombay v.Rohit Pulp & Paper Mills - 1984 (4) ETR 58 the Tribunal had taken a contrary view and had followed another decision of the Bombay High Court in the case of Patel Prabhudas Purushottamdas v. Union of India and Ors. - 1982 (10) E.L.T. 112. The decision of the Bench was that before Section 11A itself came into force it could not be read as part of Section 35A or Section 36 of the Act.
4. Though other issues are involved in the appeals, the points of difference between the decisions cited alone is the subject-matter for reference to the larger Special Bench. The respondent in appeal No.ED(SB) (T)431/79-D [Collector of Central Excise, Bombay v. R.M.D.C.Press (Pvt.) Ltd. - 1987 (29) E.L.T. 957 (Tri.)] represented by Shri A.Hidayatullah, advocate for the respondent submitted an application to appear before this Bench as intervenor and the same was also allowed.
5. The two issues that arise for consideration before this Bench are (i) whether the special period prescribed in Section 11A would apply to review show cause notices issued under the third proviso to Section 36(2) even though Section 11 had not been brought into force, and (ii) whether under article 227 of the Constitution, the Hon'ble Delhi High Court has power of superintendence and if so, what is the binding effect of the judgment of the Delhi High Court qua the Special Benches of the Tribunal situated at Delhi.
Point (i). For the purpose of clarity we reproduce below Section 36 as it stood before 1-7-1978:- "36. Revision by Central Government. - (1) The Central Government may on the application of any person aggrieved by any decision or order passed under this Act or the rules made thereunder by any Central Excise Officer or by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1968, and from which no appeal lies, reverse or modify such decision or order.
(2) The Central Government may, of its own motion or otherwise, call for and examine the record of any proceeding in which any decision or order has been passed under Section 35 or Section 35A of this Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit: Provided that no decision or order shall be varied so as to prejudicially affect any person unless such person is given a reasonable opportunity of making a representation and, if he so desires, of being heard in his defence: Provided further that no proceedings shall be commenced under this sub-section in respect of any decision or order (whether such decision or order has been passed before or after the coming into force of this sub-section) after the expiration of a period of one year from the date of such decision or order." "24 Amendment of Section 36. - In Section 36 of the Central Excises and Salt Act, - (a) after Sub-section (1), the following sub-section shall be inserted, namely:- "(1A) Every application under Sub-section (1) shall be accompanied by a fee of rupees one hundred and twenty-five." (b) in Sub-section (2), after the second proviso, the following further proviso shall be inserted, namely:- "Provided also that where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied or erroneously refunded, no order levying or enhancing the duty, or no order requiring payment of the duty so refunded, shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time-limit specified in Section 11A." Section 11A which was also introduced as part of Act XXV of 1978 reads as follows (relevant portion alone extracted):- "11A. Recovery of duties not levied or not paid or short-levied or shortpaid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made requiring him to show cause why he should not pay the amount specified in the notice: Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words 'six months', the words 'five years' were substituted." 6. It must be mentioned that Section 1(2) of Act XXV of 1978 under which both the provisions were enacted specifies that the Act shall come into force on such date as the Central Government may, by notification in the official gazette appoint, with a proviso that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of the Act shall be construed as a reference to the coming into force of that provision. The Act No. 25 of 1978 received the assent of the President on 6-6-1978 and was published in the Gazette of India dated 7-6-1978, Part-II, S.1. Extension page 261, under Notification No.227A/6/78SBP(CS), dated 19-6-1978. The Central Government fixed 1-7-1978 as the date on which the amendment to Section 36 mentioned above should come into force. But in respect of Section 11A Notification No. 182/80-C.E., dated 16-11-1980 appointed 17-11-1980 as the date on which the new provisions of Sections 11A and 11B should come into force.
7. It follows from the above narration that if the time-limit specified in Section 11A, that is, period of six months, is taken as indicating only the period within which the show cause notice should be issued then certain consequences would follow. Per contra, if one has to hold that Section 11A had not come into force on 1-7-1978, a different period of limitation then set out in Section 11A would be applicable.
Mrs. V. Zutshi, SDR argued that Section 11A had not come into force on the date of the review notices and hence the limit specified in that section should not be incorporated by reference. According to her, the decision in 1981 (8) E.L.T. 421 (Associated Cement Co. Ltd. v. U.O.I.) would not apply to the facts of the case, because it did not specifically deal with the question that Section 11A had come into force only on 17-11-1980. She relied on the decision reported in 1982 (10) E.L.T. 112 (Patel Prabhudas Purushottam Das v. U.O.I. and Ors.) where this distinction had been pointedly drawn. She further urged that as Section 11A had not come into force, there was no provision in the proviso (iii) to which the period of limitation set out in Section 11A could be computed. She drew support to her arguments from the case of C.C.E., Bombay v. Rohit Pulp & Paper Mills - 1984 (4) ETR 58 where the same questions were considered and it was held that Section 11A had not come into operation at that time and the benefit of the provision of Section 11A could not be made applicable. As Section 11A was not in force, it was held, that there was no provision in force by reference to which the special period of limitation could be computed. She further urged that it would render Sub-section 1(2) of Act 25 of 1978 nugatory as dates have been fixed for coming into force of different provisions.
8. Legislation by incorporation, according to her, should be with reference to law in existence. She referred to the passage from "Craies on Statute Law" (7th Edition) who, while referring to the observations of Brett, L.J., observed as follows:- "There is a rule of construction that, 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, as the incorporated provisions have become part of the second statute." 9. She stated that if the subsequent Act brought into itself by reference to the clauses of the former Act, the legal effect would be to write those sections into; the new Act and hence if Section 11A was not in force on 1-6-1978 there would be nothing to refer to much less read into Section 36 proviso (3) to the time-limit specified in Section 11A. She stated that when in the construction of a statute two views are possible, one of which would result in an anomaly and the other not, it was the duty of the court to adopt the latter and not the former - A.I.R. 1959 SC 422 (N.T. Veluswami Thevar v. Raja Nainar and Ors.). In this connection, a reference was made to the following para on page 102 of "Principles of Statutory Interpretation" by G.P. Singh:- "No doubt in cases of ambiguity that construction which better serves the ends of fairness and justice will be accepted, but otherwise it is for the legislature in forming its policy to consider these elements. If no alternative construction is open the court cannot ignore a statutory provision 'to relieve what it considers a distress resulting from its operation; a statute has to be given effect to whether the court likes it or not'."South India Corporation (P.) Ltd. v. Secretary, Board of Revenue, Trivandrum and Anr.] the question arose about the validity of the provisions of the Travancore-Cochin General Sales Tax Act which was published in the Gazette on 17-1-1950, but the provisions were brought into force only on 30-5-1960, that is, after the commencement of the Constitution. It was held that the tax under that Act would not be saved, as the necessary condition that the levy should have been lawfully made before the Constitution was not satisfied.
11. In The Commissioner of Income-tax, Bombay City 1 v. Godavari Sugar Mills Ltd. - AIR 1967 SC 556, the reason for enacting Section 6 of the General Clauses Act has been described as following the earlier decision in State of Punjab v. Mohar Singh - AIR 1955 SC 84 at p. 87 : (1955) 1 SCR 893 at p. 897):- "Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right. To obviate such results a practice came into existence in England to insert a saving clause in the repealing Statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment. Later on, to dispense with the necessity of having to insert a saving clause on each occasion, S. 38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known,, is on the same lines as S. 38(2) of the Interpretation Act of England".
12. She urged that it was only by a legal fiction that the limit prescribed under Section 11A is deemed to be in existence.
13. Shri Soli Sorabji, the learned senior counsel appeared for the respondents and drew a distinction between the enactment of a statute and coming into force of its provisions. He urged that on enactment the Act becomes part of a statute though different provisions may come into force on different dates. Merely because the enforceability of certain provisions is deferred depending upon exigencies, it cannot be urged that there was no enactment. Legislation by reference or legislation by incorporation is a well accepted principle resorted to in legislative drafting for purposes of brevity and precision. He argued that if the time-limit specified in Section 11A is not made applicable to the third proviso of Section 36(2), then it would render that provision redundant and nugatory. But such a step would be contrary to norms of interpretation, because this proviso had come into existence even on 1-7-1978 under the notification, set out supra. The learned counsel urged that the provisions of Act 25 of 1978 had been enacted on 6-6-1978, but giving effect to these provisions alone got postponed.
The time-limit specified in Section 11A should be read into the proviso (3) of Section 36(2) as it is legislation by incorporation. Any other interpretation would result in a situation, in that proviso (3) to Section 36(2) which had been passed by the legislature and had been brought into force on or about 1-7-1978 would be rendered inoperative for nearly two years, that is, till Section 11A had come into force.
Such a construction would render the legislative exercise otiose and has to be avoided.
14. He contended that the nature of incorporation by reference is to read the incorporated provisions in the statute and any modification or repeal of the same has no effect on the statute in which they are incorporated. He cited the passage of Lord Dunedin [PRINCIPLES OF STATUTORY INTERPRETATION by G.P. Singh (Page 32)] as follows:- "It is our duty to make what we can of statutes, knowing that they are meant to be operative, and not inept, and nothing short of impossibility should in my judgment allow a judge to declare a statute unworkable.... A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used." 15. He also drew our attention to the following passage in the General Clauses Act by P.M. Bakshi (pages 155 & 159):- "In connection with the legal effect of statutes, there are two matters to be kept apart from each other; the enactment of the statute and its coming into force. The authority by which a statute can be enacted and the manner in which it must be processed through the legislature are matters belonging to the domain of constitutional law and parliamentary procedure. Once a statute has been validly passed or enacted, the question when it comes into force is a matter pertaining to the field of statute law." "Where the law, as passed, contemplates such action for bringing it into commencement, one can say that the notification or other positive action intended to bring the law into force is the spark that ignites the flame, hitherto dormant. The law has already been enacted, the constitutional formalities for enacting legislation having been undergone to the full. It has already become an "enactment", but it is only potentially capable of conferring rights and imposing duties, the legislature itself having contemplated one more formality for giving life to its own creation." 16. The learned counsel cited several decisions to bear out the principles in regard to legislation by reference or legislation by incorporation. He urged that when a subsequent Act incorporated provisions of a previous Act, then the borrowed provisions become an integral and independent part of the subsequent Act and were totally unaffected by any repeal or amendment in the previous Act (The State of Madhya Pradesh v. M.V. Narasimhan(Mahindra and Mahindra Ltd. v. The Union of India and Anr.) a question arose about the right of appeal arising under the Monopolies and Restrictive Trade Practices Act, 1969, Section 55 consequent to the amendment of Section 100, C.P.C. The Hon'ble Supreme Court held that if there was a mere reference to or citation of one statute in another without incorporation, then unless a different intention clearly appeared, Section 8(1) of the General Clauses Act, 1897 would apply and a reference would be construed as a reference to the provisions, as may be enforced from time to time in the former statute. But if a provision of one statute is incorporated in another any subsequent amendment in the former statute and even the total repeal would not affect the provisions as incorporated in the latter statute.
18. In 1985 (21) E.L.T. 607 (Tribunal) (B. Rajendra Oil Mills v.C.C.E., Madras), the Tribunal by a majority judgment held that the provisions of the Central Excises and Salt Act, 1944 or the Customs Act, 1962 have been bodily lifted and put in the Produce Cess Act, but it was a case where the provisions of the earlier Acts like Customs Act and Central Excises Act have been made available for certain purposes.
19. In AIR 1975 SC 1389 (Krishna Chandra Gangopadhyaya, etc. v. The Union of India and Ors.) the question canvassed was, "Whether the Amending Act in question has been an exercise in futility because of an unconstitutional essay and foggy drafting or has achieved the purpose set by Parliament which is transparent from the legislative history." In para 13 we find the following passage: "It is a far constitutional cry from this position to the other proposition that where Parliament has power to enact on a topic actually legislates within its competence but, as an abbreviation of drafting, borrows into a statute by reference the words of a State Act not qua State Act but as a convenient shorthand, as against a longhand writing of all the sections into the Central Act, such legislation stands or falls on Parliament's legislative power, vis-a-vis the subject, viz., mines and minerals. The distinction between the two legal lines may sometimes be fine but always is real." 20. Shri Sorabji urged that it was for purpose of convenience that instead of writing the time specified in Section 11A verbatim in the proviso, the legislature thought it competent to refer only to the time-limit in the provisions as a convenient shorthand.
21. He also drew our attention to the decisions reported in 1981 (8) E.L.T. 421 (Associated Cement Companies Ltd. v. UOI) where a similar question arose before the Delhi High Court. The Hon'ble Delhi High Court has held that Section 11A has to be read into the third proviso in Section 36(2) in relation to the orders passed under Section 35 or 35A.22. In 1983 (12) E.L.T. 711 (Triveni Sheet Glass Works Ltd. v. UOI) the Allahabad High Court rejected the arguments that as the provisions of Section 11A were in force only with effect from 17-11-1980, the third proviso to Section 36(2) added by Act 25 of 1978 did not become operative till 17-11-1980. In the case of 1984 (15) E.L.T. 157 - Motilal & Company, Thane v. Collector of Central Excise, Bombay which was also a case of notice for revision under Section 35A(3) of the Central Excises and Salt Act, 1944, the Tribunal held that legislation by reference was an accepted practice and Section 11A being incorporated in Section 35A(3)(b) had actually been written with pen or printed in it.
23. In 1984 (16) E.L.T. 177 [Corn Products Co. (India) Ltd. and Anr. v.Union of India and Anr.] the Bombay High Court also took a similar view. The learned counsel for the appellants also cited the decisions reported in 1985 (6) ETR 256 (Collector of Central Excise, Chandigarh v. British India Corporation Ltd., Gurdaspur) and 1986 (23) E.L.T. 260 (Collector of Central Excise, Bangalore v. Bharat Earth Movers Ltd.) 24. On the second issue regarding the binding effect of the Delhi High Court judgments, Mrs. Zutshi, SDR urged that since different High Courts have taken different views it was open to the Tribunal to follow any decision. Quoting from the case of Atma Steel reported in 1984 (17) E.L.T. 331 decided by the Tribunal Mrs. Zutshi, SDR urged that since the different High Courts have taken contrary views, the Tribunal can come to its own conclusion after considering the ratio of both the judgments. She urged that provision has been made for appeals to the Supreme Court direct in respect of matters relating to determination of duty and valuation. She made a reference to the High Court rules and contended that no rules have been framed thereunder qua the Tribunal as in the case of other special enactments. The rules of the High Court do not prescribe any such rules in respect of the proceedings before this Tribunal.
25. Shri Soli Sorabji, on the other hand, urged that the power of superintendence given to the High Courts under article 227 of the Constitution extended to all quasi judicial bodies and Tribunals situated within its jurisdiction. Among others (as per article 227), the power of superintendence envisaged the calling for returns, prescribing forms, etc. The generality of the article postulated superintendence over all Tribunals throughout the territories in relation to which the High Court exercises jurisdiction. The Special Benches of the Tribunal shall be located at Delhi (vide Constitution of Benches - Customs, Excise and Gold (Control) Appellate Tribunal Order No. 2 of 1982, dated 16th October, 1982). The location of the Special Benches being the basis for determination of the superintendence contemplated under article 227, Shri Sorabji argued that this Appellate Tribunal is also amenable to the superintendence of the High Court of Delhi. The Income Tax Appellate Tribunal (Polisetty Narayana Rao v.Commissioner of Income-tax [1956] 29 ITR 222), the Industrial Tribunal (AIR 1953 SC 58), the Board of Revenue (AIR 1950 SC 188), the Appellate Tribunal under the Motor Vehicles Act (AIR 1951 Cal. 255) and the Tribunal under the Merchant Shipping Act (AIR 1955 Bombay 241) have been held to be amenable to superintendence by High Courts of their respective areas under article 227. The learned counsel urged that the Tribunal was bound by the judgment of the Delhi High Court as it was within the territorial jurisdiction of the Delhi High Court. Prior to the constitution of the Appellate Tribunal and the Special Benches, the Central Board of Excise and Customs and the Gold Control Administrator which were exercising the powers of appeal/revision, were situated in Delhi and were held to be bound by the decisions of the Delhi High Court. The review show cause notice was issued by the Government of India under Section 36(2) and the decision of the Delhi High Court in the case of Associated Cements (supra) would apply to the facts of this case as these were merely transferred to the Tribunal by virtue of Section 35B. Shri Sorabji said that in the Atma Steel (supra) no question of superintendence of Delhi High Court under article 227 came up for scrutiny and the question there was to take a decision of when two other High Courts had taken contrary views. The issue of superintendence of the Delhi High Court over the Appellate Tribunals was not one of the issues that came up for scrutiny in that case.
26. In support of his contention Shri Sorabji cited a decision reported in AIR 1954 SC 215 (Waryam Singh and Anr. v. Amarnath and Anr.). It was urged in that case that article 227 conferred no power on the Court of Judicial Commissioner over the Rent Controller or District Judge. But the Supreme Court held that Rent Controller and District Judge exercising jurisdiction under the Act were certainly tribunals, if not court, and they function within the territories of Himachal Pradesh.
Therefore, article 227(1) read with article 241 conferred on the Court of the Judicial Commissioner power of superintendence over such tribunals. The words "in relation to which" obviously qualify the word "territories" and not the words "courts and tribunals".
27. AIR 1958 Allahabad 137 (Sita Ram v. K.K. Banerji) was a case under the Representation of People Act, 1951. In that case it was held that the appellate jurisdiction of a High Court did not depend on the place where a cause of action might arise. The appellate jurisdiction depended on the situation of the court or the tribunal from which the appeal is taken to the High Court. In para 8 it is observed that if an election tribunal is situated in a particular state, then, in accordance with articles 225 to 227 of the Constitution, the appellate jurisdiction in respect of cases decided by that tribunal must be exercised by the High Court exercising jurisdiction over the place where the election tribunal is sitting ...the High Court exercising jurisdiction over that place should have superintendence over the tribunal.(Shri Baradakanta Mishra v. Shri Bhimsen Dixit) in para 14, it is observed as follows:- "Under Article 227 of the Constitution, the High Court is vested with the power of superintendence over the courts and tribunals in the State. Acting as a quasi judicial authority under the Orissa Hindu Religious Endowments Act, the appellant was subject to the superintendence of the High Court." 29. The counsel for the appellants urged that judicial decorum no less than legal propriety forms the basis of judicial procedure. He relied on AIR 1960 SC 936 at 941 (Satyadhyan v. Smt. Deorajin Debi) in support of this proposition. "If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions." He urged that if one Division Bench could not differ from an earlier decision of a Division Bench of the same High Court, it would apply with greater force to a Tribunal (as the one like this) to follow the decision of the High Court. He stated that the Supreme Court decision was binding on the High Court and it could not be ignored on the ground that the provision not brought to the notice of the Supreme Court (AIR 1970 SC 1002 - Ballabhdas Mathuradas Lakhani v. Malkapur Municipality). On the same anology he stated that the lower tribunal cannot ignore the decision of the High Court on the ground that relevant provisions were not brought to the notice of the High Court. AIR 1976 AP 85 (Mandam Abdul Sattar Saheb v. H. Abdul Hakeem and Ors.) and AIR 1971 Guj. 77 (Mohmad Khan Jamiyatkhan v. Dadamiyan Mohmadmiyan) were also cited. Shri Sorabji urged that every court was bound to follow the High Court and only a concurrent court which could distinguish a decision on the ground that it is obiter or per incuriam or that it is distinguishable on similar facts. In 1978 (2) E.L.T. (J 624) (Commissioner of Income-lax, Vidharbha & Marathwada, Nagpur v. Smt. Godavaridevi Saraf, Tumsar) the Bombay High Court has held that until a contrary decision is given by any other competent High Court, which is binding on a Tribunal in the State of Bombay it has to proceed on the footing that law declared by the High Court, though of another State, is a final law of the land.
[1953] 24 ITR 70 (Raja Benoy Kumar Sahas Roy v. C.I.T., West Bengal) and [1954] 26 ITR 424 (Jyotikana Chowdhurani and Ors. v. Commissioner of Income-Tax, Assam) were also relied on for the same purpose. The Tribunal, according to Shri Sorabji, had no option to disregard the decision of the Delhi High Court which arose in this case and had to follow that ruling despite the view having been dissented from the Bombay High Court.
30. ISSUE:- On the first issue if we look into the third proviso to Section 36(2), it is reasonable to conclude that Section 11A has to be read into the third proviso in Section 36(2). The main aspect which strengthens this view is, from the fact that Act 25 of 1978 was passed by the Parliament which contained not only the amendment to Section 11A of the Central Excises and Salt Act, 1944, (sic) but also the amendment to Section 36. The composite form in which the amendments have been passed indicate that it was the intention of the legislature that these amendments should form part and parcel of the same enactment. The argument that Section 11A came into force on a different date loses its relevance, if we notice that all these sections formed part of the same enactment. If for a moment, we assume that Section 11A came into force on a different date and hence that section should not be read into Section 36(2), then we would be committing the error of holding that Section 36(2) had not come into force on the date it was intended to come into force. Otherwise, we have necessarily to hold that those words were redundant. It is a well accepted proposition of interpretation that in construing statutes, unless it would lead to absurdity, or some repugnance, or inconsistency, the words should be taken in its ordinary sense. We must say that the import of Section 11A in totality has not been brought into force in Section 36(2). The words used are "within the time-limit specified in Section 11A." So it is obvious that the intention of the legislature was to apply the time-limit specified in Section 11A irrespective of the fact that Section 11A itself had not come into force. In this connection, we notice that Act 25 of 1978 contemplates different dates for coming into force of different provisions. So the mere fact that the totality of Section 11A had not come into force on a particular date, will not bar us from applying the timelimit specified in the section while reading Section 36(2).
31. The ruling in 1981 (8) E.L.T. 421 in paragraph 12 refers to words "time-limit specified in Section 11A" used at the end of the third proviso to mean the period of six months from the date of the order passed under Section 35 or 35A. In para 9 their Lordships have specifically referred to the insertion of amendment of 1-7-1978. In 1982 (10) E.L.T. 112 (Patel Prabhudas Purushottamdas v. Union of India and Ors.) delivered on 4th and 5th December, 1981, in paragraph 17 it is mentioned that it was not brought to the notice of the Hon'ble Division Bench of the Delhi High Court that during the period relevant to the matter, Section 11A had not come into force. Their Lordships in the Bombay High Court have proceeded on the basis that this particular factor was responsible for the Division Bench at Delhi to have adopted that view. But with great respect we must point out that 1981 (8) E.L.T. 421 (Delhi) refers to the date of the amendment as 1-7-1978. In that view, the Delhi High Court has taken into account the effect of the amendment under Act 25 of 1978. The Delhi High Court has also considered the import of the doctrine of incorporation.
32. Any doubt in the matter is clarified in the later decision 1983 (12) E.L.T. 711 (All.) (Triveni Sheet Glass Works Ltd. v. UOI) the Division Bench of the Allahabad High Court in para 17 have directly spoken on the two provisions coming into force on two different dates and have observed as follows: "We are also not impressed by the submission that as the provisions of Section 11A were enforced only with effect from 17th of November, 1980 the third proviso to Section 36(2) added by Act No. 25 of 1978 did not become operative till 17th of November, 1980. However, we find considerable force in the submission of the learned counsel for the respondents that the instant case is not governed by the proviso to Section 36(2) as added by Act No. 25 of 1978." This judgment was delivered on 25-2-1981. This judgment appears to have been not placed before Hon'ble Bombay High Court.
33. We also notice that another Division Bench of Bombay High Court in their later decision decided on 21-2-1984 in the matter of Corn Products Co. (India) Ltd. and Anr. v. Union of India and Anr. - 1984 (16) E.L.T. 177 (Bom.) considered the identical issue and has agreed with the view that the third proviso to Section 36(2) of the Central Excises Act has the effect of restricting the revisional jurisdiction of the Central Government in matters which arise out of the orders under Sections 35 and 35A relating to non-levy, short-levy or erroneous refund.
34. The Tribunal in 1984 (15) E.L.T. 157 (supra) has in paragraph 10 adverted to the principles of incorporation of provisions and had held that merely because Section 11A had not come into force it would not mean that for the purpose of Section 35A(3)(b) that had not come into force when it was part and parcel of the proviso.
35. Similar view has been taken by the Tribunal in C.C.E., Chandigarh v. British India Corporation Ltd. The Tribunal has observed that when Section 11A was enacted by the amending Act of 25 of 1978 and came into force on 17th November, 1980, a reference to it in the third proviso to Section 36(2) enacted by that very Amendment Act but brought into force earlier on 1st July, 1978 cannot be construed to be effective till 17th November, 1980.
36. In 1986 (23) E.L.T. 260 (Tribunal) (C.C.E., Bangalore v. Bharat Earthmovers Ltd.) at para 24 a similar view has been taken by the Tribunal. Even assuming that there is no incorporation by reference inasmuch as both the provisions were part of the same enactment, the principles governing such an interpretation would apply to this case.
37. In the light of the above discussions, we are constrained to hold that the case reported in 1984 (4) ETR 58 (C.C.E., Bombay v. Rohit Pulp & Paper Mills) has not been correctly decided. Legislation by incorporation is a well accepted principle and the ruling in AIR 1975 SC 1835 (The State of M.P. v. M.V. Narasimhan) hold that after the provision of the previous Act is incorporated in the subsequent Act, the off-spring, namely the incorporated provision, survives even if the previous Act is repealed, amended, declared a nullity or "erased from the statute book". This ruling forcibly brings into effect that for all practical purposes the legal effect of such incorporation is that those words had been written with the pen or printed into the later sections.
In AIR 1975 SC 1389 (Krishna Chandra Gangopadhyaya, etc. v. The Union of India and Ors.) such an effect of drafting is referred to as "a convenient shorthand, as against a long hand writing of all the sections". It should have been easy for the legislature to incorporate the identical words in respect of the time-limit in Section 11A. Since Section 11A was numerically anterior to Section 36, it would have been a mere repetition or verbatim reproduction of the same words in Section 36(2). As it is a normal drafting process, it was not considered necessary or essential to repeat the same words once again in the proviso to Section 36(2).
38. Craies on Statute Law (7th Edition) has referred to such a rule of construction and has said that the incorporated provisions become part of the second statute.
39. In view of the above analysis and if we bear the cardinal principles of avoiding repugnance and inconsistencies in mind, we must hold that the special period prescribed in Section 11A would apply to review show cause notices issued under the third proviso to Section 36(2) even if Section 11A had not been brought into force.
40. On the second question, though detailed arguments were advanced on both sides, we are of the opinion that in view of the earlier decisions of the Hon'ble Delhi High Court as well as the other High Courts on the principles of doctrine of incorporation (referred to in earlier paragraphs), it is not necessary for the Tribunal to give a definite finding on this issue. We have dealt with the matter at issue from the first principles of legislation by incorporation and it is not necessary for the purpose of this case to arrive at a finding on the question of superintendence one way or the other. Further, the purport of the larger Bench was merely to reconcile divergent views expressed by the Tribunal on the question of limitation. So, while commending the erudition and the elaborate arguments adduced by both the sides on this aspect, we consider that the question does not arise for consideration in the reference and has become merely academic because as has been noted in the preceding discussion, the Hon'ble High Court of Delhi is not the only High Court propounding this view, which we are respectfully adopting, and also deciding on first principles, but a Division Bench of the High Court of Bombay in the case, M/s. Corn Products Co. (India) Ltd. v. Union of India, 1984 (16) E.L.T. 177 (Bom.) as well as the High Court of Allahabad, also a Division Bench regarding the case of Triveni Glass Sheet (supra), have recorded similar findings. We thus refrain from expressing any view on this, which otherwise also, as already noted, not a subject matter of reference to us.
41. The present reference is answered in terms of the conclusion reached in the foregoing Para No. 39.