1. This reference application is filed by the department and is directed against the order of the Tribunal dated 18-3-1992 in Order No.636/1992.
3. Shri Arulsamy, the learned DR submitted that under the impugned order the Tribunal has set aside the order passed by the Collector of Customs, Visakhapatnam, dated 29-8-1990 tinder the provisions of the Gold (Control) Act, 1968, the 'Act' for short on the ground that the department issued a show cause notice on 4-6-1990 against the respondent and the records did not indicate that the show cause notice had been served on the respondent before the repeal of the Act which was on 6-6-1990. The learned DR submitted that the evidence would show that the show cause notice was served on the respondent on the day when the Gold (Control) Act was repealed and issue of a show cause notice would amount to initiation of proceedings and therefore, in terms of Section 6 of the General Clauses Act pending legal proceedings or investigations instituted would not be affected by the repealing Act and the proceedings could be continued. Therefore, a question of law would arise in this regard.
4. I have gone through the records and considered the submissions made before me. The Gold (Control) Act, 1968 was repealed on 6-6-1990. The respondent was a licensed dealer under the Act at Visakhapatnam and the Central Excise Officers attached to the preventive and intelligence unit of Visakhapatnam on 24-12-1989 inspected respondent's shop and scrutinised the accounts and found that 638 gms. of gold ornaments of 22 carat purity had not been accounted for in terms of provisions of the Act even though the same formed part of the stock in trade and the authorities therefore effected seizure of the same under a mahazar. The authorities chose to issue a show cause notice on 4-6-1990 which according to the department was received by the respondent on 6-6-1990.
In the above factual context, the question for consideration would be as to whether the proceedings could be said to have been instituted and pending under law as on the date when the Gold (Control) Act was repealed so as to bring the case within the mischief of Section 6 of the General Clauses Act, 1897. For purpose of convenience, Section 6 of the General Clauses Act dealing with the effect of repeal of statutes reads as under :- Where this Act, or any Act of the Governor General in Council 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 repeaed 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; 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." 5. Since the show cause notice was issued by the department on 4-6-1990 two days prior to the repeal of the Act and since the department contends that the show cause notice was also received by the respondent on 6-6-1990 the date on which the Act was repealed, the contention of the learned DR that by reason Section 6 of the General Clauses Act the proceedings instituted by issue of a show cause notice should be allowed to continue would merit consideration. I, therefore, agree with learned DR and hold that the Question of law arising as aforesaid would merit reference. In this view of the matter, I refer the following question of law arising out of the impugned order in terms of Section 82B of the Act to the Hon'ble High Court :- "Whether the issue of a show cause notice would amount to commencement of proceedings within the meaning of Section 6 of the General Clauses Act, 1897 and whether service of the show cause notice prior to the date of the repeal of the Gold (Control) Act, 1968 is a legal requirement for continuance of the proceedings in terms of Section 6 of the General Clauses Act ?" 6. The cross objection filed by the department is only in the nature of a counter and the same is dismissed.