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2002 Supreme(Cal) 334
High Court Of Calcutta
A. K. MATHUR, J. K. BISWAS
BIRESWAR SIRKAR - Appellant
Versus
COLLECTOR OF CENTRAL EXCISE, Calcutta, ORISSA - Respondent
F. M. A. 1031 Of 1990
Decided On : 05/15/2002
BHASKAR SEN, M.K.GOSWAMI, N.C.ROY CHAUDHARY, P.K.GHOSH, PRANTOSH MUKHERJI
Section 6 of the General Clauses Act saves the past act or action which has been initiated unless a different intention appears in the new enactment.
Headnote:
GOLD CONTROL ACT, 1968 - REPEAL - EFFECT - PENDING PROCEEDINGS - CONTINUATION - GENERAL CLAUSES ACT, 1897, SECTION 6 - APPLICABILITY.
Fact of the Case:
The petitioner was served with a show cause notice on 9th February, 1967 for contravention of the Defence of India Rules for possessing gold and gold ornaments and therefore he was given a notice to show cause as to why the gold may not be confiscated and penalty should not be imposed. Therefore, action has already been initiated against the petitioner for violation of the provisions of the Defence of India Rules and now under the Gold Control Act. Therefore, the liability has already accrued, as the petitioner has been prima facie found to be guilty of violation of the provisions of Defence of India Rules read with Gold Control Act.
Finding of the Court:
The court held that the action which has been initiated under the repealed Act shall continue by virtue of section 6 of the General Clauses Act as if the Act has not been repealed. As a result of the above discussion we are of the opinion that the contention of the learned counsel for the appellant cannot be sustained.
Issues: Whether the show cause notice issued under the Gold Control Act, 1968 can survive after the repeal of the Act.
Ratio Decidendi: Section 6 of the General Clauses Act applies to all types of repeals. The section applies whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter or repeal accompanied by fresh legislation. The section also applies when a temporary statute is repealed before its expiry, but it has no application when such a statute is not repealed but comes to an end by expiry.
Final Decision: Appeal dismissed.
( 1 ) THIS is an appeal directed against the order dated 12th January, 1984 passed by the learned single Judge whereby the learned single Judge has dismissed the writ petition. The petitioner filed this writ petition before the learned single Judge challenging the show cause notice issued to the petitioner by the Collector of Central Excise and Customs, Calcutta and Orissa under Defence of India Rules.
( 2 ) THE petitioner carries on business as jeweller and manufacturer of and dealer in gold ornaments under the firm name and style of M/s. B. Sarkar (Johuri) as the sole proprietor thereof. The petitioner was served with a show cause notice on 9th February, 1967 by the Collector of Central Excise and Customs, Calcutta and Orissa to show cause why certain quantities of gold and gold ornaments as mentioned in the show cause notice, which have been seized from his premises No. 131b, Bepin Behari Ganguly Street, Calcutta, should not be confiscated under Rule 126m of the Defence of India Rules, 1962 and why penalty should not be imposed upon him under Sub-Rule 16 of Rule 126l of the said Rules. The workshop of the petitioner was alleged to be under occupation of Gopal Chandra Singh, an employee of the petitioner M/s. B. Sarkar (Johuri) and from there the entire ornaments were seized. This show cause notice was issued to the petitioner in pursuance of a raid at the workshop of the petitioner on the ground floor of 131b, B. B. Ganguly Street, Calcutta on 2nd September, 1965 wherefrom 138 tollas 13 annas and 10. 5 pies or 1619. 724 grams of gold and gold ornaments (finished as well as unfinished) all of above 14 carat purity were seized. It is also alleged that 19 tollas and 3 annas of gold ornaments were found inside boxes bearing labels of M/s. B. Sarkar (Johuri ). It is also alleged that apart from such gold or gold ornaments, some books of accounts, claiming them to be of the petitioner firm, were also taken into custody from that premises. At the time of seizure statements of some of persons were recorded by the Gold Control Officers and it was learnt that this premises belonged to the mother of the petitioner by virtue of a family settlement.
( 3 ) THE petitioner filed a reply to the show cause notice, but before the authorities could decide the matter the petitioner rushed to file the present writ petition. The learned single Judge after considering the matter in detail came to the conclusion that there is no invalidity in issue of the said show cause notice, therefore, he
dismissed the writ petition. Aggrieved against this order the present appeal has been filed by the petitioner.
( 4 ) FOR better appreciation of the matter it would be convenient to reproduce the charges which have been leveled against the petitioner in the show cause notice. The charges were: the petitioner violated the provisions of the Defence of India Rules in the following manner: (I)rule 126-C (1) (a) (i) of the Defence of India Rules, 1962 in respect of 92 (T)-0-4. 5 (P) or 1073. 345 grams of gold ornaments of above 14 carat purity seized which were manufactured in the premises at 131b, B. B. Ganguly Street, Calcutta under the control of the firm M/s. B. Sarkar (Johuri) after 10. 1. 63 and also in respect of 39866. 469 grams of gold ornaments manufactured by the firm during the period from 11. 10. 63 to 10. 8. 65 as revealed in the books of accounts. (II)rule 126-C (1) (a) (i) ibid, in respect of 39866. 469 grams of gold ornaments of above 14 carat purity sold by the firm during 11. 10. 63 to 10. 8. 65, as revealed from the books of accounts. (III)rule 126-H (1) of ibid in respect of 138 (T)-13 (A)-10. 5 (P) or 1619. 724 grams of gold in their possession which has not been included in any return. (IV)rule 126-H (2) ibid in respect of 34 (T)-6 (A)-1. 5 (P) or 401. 206 grams of primary gold seized which was acquired by them in an unauthorised manner in the said premisesd, and also in respect of 7322. 315 grams of primary gold acquired
