text stringlengths 5 5.67k |
|---|
It recorded its conclusion as follows (at p. 509): "In the case before us, there was no substitution of the Prohibition Order of 1950 for the Prohibition Order of 1119. Ratio |
The Prohibition Order of 1950 was promulgated independ ently of the Prohibition Order of 1119, and because the provisions of law it would have had the effect of making the Prohibition Order of 1119 inoperative if it had been a valid order. Ratio |
If the Prohibition Order of 1950 is found to be void ab initio, it could never make the Prohibition Order of 1119 inopera tive". Ratio |
The argument before us is that since the word "substi tuted" is used in the amending Act of 1949, it necessarily follows that the process embraces two steps. Ratio |
One of repeal and another of the new enactment. Ratio |
But, this argument is basically different from the argument which prevailed in Koteswar 's case (supra) where a distinction was drawn be tween a "substitution" and "supersession". Ratio |
It is true that, as the term substitution was not used there, the old rule was not held to have been repealed. Ratio |
Nevertheless, the real basis of that decision was that what was called supersession was void ab initio so that the law remained what it would have been if no such legislative process had taken place at all. Ratio |
It was held that the void and inoperative legislative process did not affect the validity of the pre existing rule. Ratio |
And, this is precisely what is contended or by the State before us. Ratio |
In the case before us although the word "substitution" is used in the amending Act, yet the whole legislative process termed substitution was itself abortive. Ratio |
of India Act, was lacking. Ratio |
Such ineffectiveness was the very reason why, in the case of Sriram Gulabdas (supra), it was held that the previous law stood unaffected by the attempted legislation called substitution. Ratio |
Moreover, the case of Shriram Gulabdas (supra) is a direct authority on the very provisions now before us. Ratio |
Other cases cited are on very different legislative provisions. Ratio |
We do not think that the word substitution necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. Ratio |
Indeed, the natural meaning of the word "substitution" is to indicate that the process cannot be split up into two pieces like this. Ratio |
If the process de scribed as substitution fails, it is totally ineffective so as to leave intact what was sought (1) [1963] Suppl. Ratio |
2 S.C.R. 435. 1010 to be displaced. Ratio |
That seems to us to be the ordinary and natural meaning of the words "shall be substituted". Ratio |
This part could not become effective without the assent of the Governor General. Ratio |
The State Governor 's assent was insuffi cient. Ratio |
It could not be inferred that, what was intended was that, in case the substitution failed or proved ineffective, some repeal, not mentioned at all, was brought about and remained effective so as to create what may be described as a vacuum in the statutory law on the subject matter. Ratio |
Pri marily, the question is one of gathering the intent from the use of words in the enacting provision seen in the light of the procedure gone through. Ratio |
Here, no intention to reveal, without a substitution, is deducible. Ratio |
In other words, there ' could be no repeal if substitution failed. Ratio |
The two were a part and parcel of a single indivisible process and not bits of a disjointed operation. Ratio |
It could not be said that what the Legislature intended. Ratio |
or what the Governor had assented to consisted of a separate repeal and a fresh enactment. Ratio |
The two results were to follow from one and the same effective Legislative process. Ratio |
The process had, therefore, to be so viewed and interpreted. Ratio |
Some help was sought to be derived by the citation of B.N. Tewari vs Union of India & Ors.,(1) and the case of Firm A.T.B. Mehtab Majid & Co vs State of Madras (supra). PRE |
Tewari 's case (supra) related to the substitution of what was described as the "carry forward" rule contained in the departmental instruction which was sought to be substituted by a modified instruction declared invalid by the Court PRE |
It was held that when the rule contained in the modified in struction of 1955 was struck down the rule contained in a displaced instruction did not survive. PRE |
Indeed, one of the arguments there was that the original "carry forward" rule of 1952 was itself void for the very reason for which the "carry forward" rule, contained in the modified instructions of 1955, had been struck down. Ratio |
Such a doctrine applies in a case where a judgment of a Subordinate Court merges in the judgment of the Appellate Court or an order reviewed merges in the order by which the review is granted. Ratio |
Its application to a legislative process may be possible only in cases of valid substitution. Ratio |
The legislative intent and its effect is gathered, inter alia, from the nature of the action of the authority which func tions. Ratio |
It is easier to impute an intention to an executive rule making authority to repeal altogether in any event what is sought to be displaced by another rule. Ratio |
The cases cited were of executive instructions. Ratio |
The procedure for enactment is far more elaborate and formal. Ratio |
A repeal and a displacement of a Legislative provision by a fresh enactment can only take place after that elaborate procedure has been followed in toto. Ratio |
In the case of any rule contained in an executive instruction. Ratio |
(1) ; 1011 on the other hand, the repeal as well as displacement are capable of being achieved and inferred from a bare issue of fresh instructions on the same subject. Ratio |
In Mehtab Majid & Co 's case (supra) a statutory role was held not to have revived after it was sought to be substi tuted by another held to be invalid. Ratio |
This was also a case in which no elaborate legislative procedure was prescribed for a repeal as it is in the case of statutory enactment of statutes by legislatures. Ratio |
In every case, it is a question of intention to be gathered from the language as well as the acts of the rulemaking or legislating authority in.the context in which these occur. Ratio |
A principle of construction contained now in a statutory provision made in England since 1850 has been: "Where an Act passed after 1850 repeals wholly or partially any former enactment and substitutes provision for the enactment repealed, the repealed enactment remains in force until the substituted provisions come int... |
(See: Halsbury 's Laws of England, Third Edn. Ratio |
; Craies on "Statute Law", 6th Edn. p.386). Ratio |
Although, there is no corresponding provision in our General Clauses Acts, yet, it shows that the mere use of words denoting a substitution does not ipso facto or automatically repeal a provision until the provision which is to take its place becomes legally effective. Ratio |
We have, as explained above reached the same conclusion by considering the ordi nary and natural meaning of the term "substitution" when it occurs. Ratio |
without anything else in the language used or in the context of it or in the surrounding facts and circumstances to lead to another inference. Ratio |
It means, ordinarily, that unless the substituted provision is there to take its place, in law and in effect, the pre existing provision continues. Ratio |
There is no question of a "revival". Ratio |
This question of interpretation was referred separately to the Full Bench of the Bombay High Court which drew a distinction between the two meanings of the word "substitut ed"; firstly, where it involved a direction as to what would have to be removed or repealed simultaneously with another as to what was to be substit... |
It is difficult to see how a single direction to one direction to modify. Ratio |
It is difficult to see how a single direction to substitute would be effective without implying in it another to remove 'what was to be displaced. Ratio |
Perhaps more simply and correct ly stated, the difference between two meanings of the word "substituted" is one 'where it stands for two separable legislative process and another where it stands for one total or completed legislative procedure, including the assent of the Governor General, which would be covered by the... |
The Full Bench came to the conclusion that, in the context in which the words directing substitution occur, they do not imply that in the event of the failure of the amendment, taken as a whole a repeal would survive. Ratio |
To be able to "Survive" a repeal 1012 had first to come into existence. Ratio |
In the situation before us no repeal came into legal existence. Ratio |
The real question for determination is always one of the meaning of words used in a purported enactment in a particu lar context. Ratio |
We think that the Full Bench of the High Court correctly held that there was no repeal of the existing provision when "substitution", by means of an amendment, failed to be effective. Ratio |
It had also rightly distinguished some of the cases cited before it on the ground that, in those cases, the process for substitution was interpreted to necessarily imply both a repeal and re enactment out of which only the repeal which took place had survived when the re enactment proved abortive. Ratio |
On the question whether the particular goods existed in Madhya Pradesh at all at the time of the contracts, so that the contract could be said to be referable to them, the High Court had observed: " . the question was whether Oriental Mixture was present in the former State of Madhya Pradesh when the contracts of sale ... |
On this point, which was purely a question of fact, the decision of the second appellate authority was final and that decision was that Oriental Mixture in the form in which the contracts to sell that commodity were made was present in the State of Madhya Pradesh at the time when those contracts were made. Ratio |
Therefore, that point was not open for decision before the Tribunal and it is not necessary to dilate on the facts relating to that question". Ratio |
It also said: "In Commissioner of Sales Tax, Eastern Division, Nagpur vs Hesenali Adamji & Co. (1959) (10 STC 297), there was no evidence that at the date when the agreement for sale was made, the particular logs delivered there under were in Central Provinces in the shape of logs at all, and a standing tree which was ... |
The Tribunal relied on the observations in the Judgment of the Su preme Court at page 310 which are to the effect that the goods must, at the date of the contract, be there in the taxing State in the form in which they are agreed to be sold. Ratio |
In that case, the agreement of sale can be said to be in respect of those goods. Ratio |
Here, as found by the second appellate authority, ore in the form of Oriental Mixture was present in the taxing State when contracts of sale in re spect of Oriental Mixture were made by the Head Office of the applicant company". Ratio |
After giving the findings set out above, on the question whether the. goods existed in the State of Madhya Pradesh when they were sold and, whether the contracts were refera ble to these goods, the High Court 1013 proceeded to consider the question whether "Oriental Mix ture" itself had come into existence in Madhya Pr... |
Apparently, what the High Court had meant by its earlier findings was not that the "Oriental Mixture" was in existence in Madhya Pradesh, but that the ingredients which went into its composition existed in Madhya Pradesh at the time when the contracts were made. Ratio |
It had finally reached the conclusion that the Mixture itself was formed at the port where the ingredients were unloaded. Ratio |
We are unable to accept the High Court 's reasoning that, while the goods which went into the composition of the "Oriental Mixture" existed in Madhya Pradesh when the contracts were made, yet, they were not taxable in Madhya Pradesh because ' the "Oriental Mixture" came into existence at the port. Ratio |
In other words, it held that a mere mixture of goods, even if it occurs in the process of unloading, converts the goods, which existed in Madhya Pradesh and were transported to the port, into separately identifiable commercial commodity Known as "Oriental Mixture". Ratio |
As already mentioned above, this term is not used in the contracts but is a term employed by the firm itself to indicate the specifications contained in the contracts of goods ordered. Ratio |
It is difficult to see what process of manufacture is gone through so as to bring a new category or genus of commercial goods into existence at the port. Ratio |
The High Court had relied on cases where raw tobacco subjected to various processes, such as sprinkling of jag gery juice or water on it and allowing it to ferment for some time before cutting it up and packing it, was held to become a new commodity. Ratio |
These cases were: The State of Madras vs Bell Mark Tobacco Co. C); The State of Madras vs Swasthik Tobacco Factory(2); Anwarkhan Mehboob Co. vs The State of Bombay (Now Maharashtra) & Ors. Ratio |
Reliance was also placed on behalf of the assessee on Shaw Wallace & Co. Ltd. vs The State of Tamil Nadu(4), where it was held that goods were actually subjected to a process of manufacturing when chemical fertilisers and fillers like "China clay", "gypsum", and other ingredients, were mixed at a "mixing works" of a co... |
It was held there by this Court that the resulting product was a commercially distinct commodity. Ratio |
Several cases of manure mixtures are referred to in the case. Ratio |
Now, ' in the case of manure mixtures, made out of different ingredients, at a "mixing works", it can per haps be said that a chemical process is gone through. Ratio |
In any case, the product which came into existence was known and sold as a separate commercial commodity in the mar ket. Ratio |
It required a process to be gone through at what were known as mixing works of the company to convert it into that commodity. Ratio |
On the other hand, in the case before us, it seems to us that what has been "manufactured" by the asses see is the same "Oriental Mixture" (1) (1967) 19 S.T.C. 129. Ratio |
(2) (1966) 17 S.T.C. 316. Ratio |
(3) (1960) 11 S.T.C. 698. Ratio |
(4) (1976) 3 S.T.C. 522. Ratio |
1014 only if the term "manufacture" can be employed at all to anything done by the assessee. Ratio |
What is to be determined is whether there has been the manufacture of a new product which has a separate commercially current name in the mar ket. Ratio |
The mere giving of a new name by the seller to what is really the same product is not the "manufacture" of a new product. Ratio |
There is, it appears to us, no new process of the manufacture of goods at all by the assessee before us. Ratio |
Again, cases in which logs of wood were cut in order to convert them into planks [e.g. Ratio |
Shaw Bros & Co. vs The State of West Bengal(1)] could be of no assistance in the case before us. Ratio |
That too could be a process of "manufacture". Ratio |
The High Court had also made a passing reference to Nil giri Ceylon Tea Supplying Co. vs The State of Bombay(2), a case decided by the Bombay High Court, where different brands of tea, purchased in bulk and "without application of any mechanical or chemical process", were mixed so as to conform to a particular mixing f... |
We think that the similarity of the process to which goods sold were subjected in this case seems to make the reasoning adopted in this case more prop erly applicable to the cases before us than any other found in other cases mentioned above. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.