Sec 174 – Repeal and saving

You are here :Home>Bare Law>Sec 174 – Repeal and saving
Sec 174 – Repeal and saving 2017-04-14T02:22:21+00:00

Tagged: ,

Viewing 4 posts - 1 through 4 (of 4 total)
  • Author
    Posts
  • Miloni ShahMiloni Shah
    Moderator
    Post count: 48
    Topics: 45
    Replies: 3
    Been thanked: 0 times
    #1065 |

    (1) Save as otherwise provided in this Act, on and from the date of commencement of this Act, the Central Excise Act, 1944 (except as respects goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution), the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the Additional Duties of Excise (Goods of Special Importance) Act, 1957, the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978, and the Central Excise Tariff Act, 1985 (hereafter referred to as the repealed Acts) are hereby repealed.
    (2) The repeal of the said Acts and the amendment of the Finance Act, 1994 (hereafter referred to as “such amendment” or “amended Act”, as the case may be) to the extent mentioned in the sub-section (1) or section 173 shall not-
    (a) revive anything not in force or existing at the time of such amendment or repeal; or
    (b) affect the previous operation of the amended Act or repealed Acts and orders or anything duly done or suffered thereunder; or
    (c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts:
    Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or
    (d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against the provisions of the amended Act or repealed Acts; or
    (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or recovery of arrears or remedy in respect of any such duty, tax, surcharge, penalty, fine, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and other legal proceedings or recovery of arrears or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, fine, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so amended or repealed;
    (f) affect any proceedings including that relating to an appeal, review or reference, instituted before on, or after the appointed day under the said amended Act or repealed Acts and such proceedings shall be continued under the said amended Act or repealed Acts as if this Act had not come into force and the said Acts had not been amended or repealed.
    (3) The mention of the particular matters referred to in sub-sections (1) and (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal.

    Priya MadrechaPriya Madrecha
    Moderator
    Post count: 280
    Topics: 4
    Replies: 276
    Been thanked: 1 time

    174.1 Introduction
    These provisions indicate the extent of current indirect tax laws, which would continue upon introduction of CGST Act. It also provides for exceptions as to continuation of certain provisions of the existing laws for the sake of smooth transition. Further certain Acts would be repealed upon introduction of CGST Act.
    174.2 Analysis
    (a)    These provisions have to be read along with the Transition provisions in chapter XX.
    (b)    It would come into force on the date of enactment of the CGST Act.
    (c)    Whenever an enactment is repealed or substituted by a new enactment then the new enactment should provide for a clause relating to repeal or saving of certain provisions under the old law.
    (d)    This would ensure that the rights, powers, liabilities, duties, privileges, obligations etc created under the old laws are intact and are not affected by the enactment of new law by repealing the old laws.
    (e)    Entry 84 of the Union List and Entry 54 of the State List, both forming part of the VII Schedule to the Constitution as amended by the Constitutional (101st Amendment) Act 2016 would continue to apply to certain goods.
    (f)    For the said purpose, the General Sales Tax/VAT / CST laws and Central Excise Act, 1944 and Central Excise Tariff Act, 1985 would continue to apply – Eg. Certain petroleum products, tobacco products.
    (g)    Thus these laws would operate even after the GST is introduced and are not repealed.
    (h)    In other words its application is restricted to few products/goods only.
    (i)    The following laws would be repealed, as the taxes are subsumed by GST law:
         State laws:
    (i)    Entry Tax laws.
    (ii)    Entertainment Tax laws.
    (iii)    Luxury Tax laws.
         Central laws:
    (i)    Duty of Excise on Medicinal and Toilet Preparation Act.
    (ii)    Chapter V of the Finance Act, 1994 (Service Tax law).
    (j)    However such restricted application or repeal of old laws would not affect or revive the following:
     Revive anything not in force or existing at the time at which the amendment or repeal takes effect. To illustrate, if a person has not taken credit in the earlier regime due to restrictions on time limit, he does not get a chance to claim it after such time limit is removed due to repeal of ST law.
         Affect the previous operation of the amended/repealed Acts or anything duly done or suffered there under. To illustrate, if a person has duly filed returns under the old regime it cannot be questioned now by the department. Similarly, if a person has been penalised earlier for delay in filing returns and has paid late filing fee, it cannot be questioned now by the assessee.
         Affect any right, privilege, obligation, or liability acquired, accrued or incurred under the amended/repealed Acts. To illustrate, a right of appeal, which accrues under the old regime and duly exercised before the CESTAT or Commissioner (Appeals) does not fail due to restricted application of the old laws. Similarly, the mandatory pre-deposit made under section 35F of the Central Excise Act, 1944, to pursue an appeal cannot be claimed as refund after GST is introduced.
         Affect any tax, surcharge, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed under the provisions of the amended/repealed Acts. For example, if a Central Excise case is decided by the Supreme Court after enactment of GST and the party’s appeal is rejected then the liabilities can still be enforced even though the CE Act may be repealed or applied in a restricted manner.
         Affect any investigation, enquiry, assessment proceeding, any other legal proceeding or remedy in respect of any such tax, surcharge, penalty, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, enquiry, assessment proceeding, adjudication and other legal proceeding or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so restricted or not so enacted. To illustrate, if on the date of enactment of GST law, the matter is under investigation, it can be continued and the SCN can be issued subsequently invoking the old provisions.
         Affect any proceeding including that relating to an appeal, revision, review or reference, instituted before the appointed day under the earlier law and such proceeding shall be continued under the earlier law as if this Act had not come into force and the said law had not been repealed. To illustrate, all the pending
    matters before the Commissioner (Appeals), Revisionary Authority, CESTAT, High Court and Supreme Court, would be continued and would not abate due to introduction of GST law.
    174.3    Comparative review
    It would be interesting to refer to the Supreme Court decision in Kolhapur Canesugar Works Limited Vs UOI, 2000 (119) ELT 257 (SC), which has explained the effect and importance of repeal or saving clause by referring to section 6 of the General Clauses Act, 1887. Since there is a special provision in the GST Act, it would apply. Wherever the specific provision does not address a particular issue relating to repeal or saving, it is necessary to fall back on the provisions of General Clauses Act.
    174.4    FAQs
    Q1. Which are the State laws repealed after introduction of GST?
    Ans.  Entry Tax laws, Entertainment Tax laws and Luxury Tax laws.
    Q2. Which are the Central laws repealed after introduction of GST?
    Ans.  (i) Duty of Excise on Medicinal and Toilet Preparation Act.
    (ii) Chapter V of the Finance Act, 1994 (Service Tax law).
    Q3. Which are the State laws applied in a restricted manner after introduction of GST?
    Ans.  General Sales Tax/VAT would continue to apply – Eg.certain petroleum products.
    Q4. Which are the Central laws not repealed after enactment of GST?
    Ans.  CST Act, 1956, CE Act, 1944 and CE Tariff Act, 1985, would continue to apply – Eg. Certain petroleum products.
    Q5. Central Excise law would apply to which goods after introduction of GST?
    Ans.  Certain petroleum products and tobacco products.
    Q6. Which are the goods or products to which VAT laws would apply even after GST is introduced?
    Ans.  Entry 84 of the Union List and Entry 54 of the State List, both forming part of the VII Schedule to the Constitution as amended by the Constitution (101st Amendment) Act, 2016, would continue to apply to certain goods. Consequently VAT laws would continue to that extent.
    Q7. After introduction of GST what is the fate of all departmental appeals filed during the pre-GST regime?
    Ans.  It would continue and would not abate.
    Q8. After introduction of GST whether Department can continue to investigate the offences allegedly committed under the old regime?
    Ans.  Investigation can continue and SCN can be issued later.
    Q9. Can the Supreme Court dismiss all indirect tax appeals pending before it on the ground that GST Act has been introduced?
    Ans.  The appeals already instituted would be heard by the Supreme Court and would not abate or be dismissed.
    174.5 MCQs
    Q1. The ___________ law is repealed after enactment of GST.
    (a)      Entry Tax law  (b)     VAT law
    (c)    Company law
    (d)    Central Excise law.
    Ans.  (a) Entry Tax law.
    Q2. Central Excise law would continue to apply in respect of goods covered by Entry _____ of Union List of VII Schedule to the Constitution.
    (a)    84
    (b)    85
    (c)    54
    (d)    47
    Ans.  (a) 84
    Q3. State sales tax and VAT laws would continue to apply in respect of goods covered by Entry _____ of State List of VII Schedule to the Constitution.
    (a)    84
    (b)    85
    (c)    54
    (d)    47
    Ans. (c) 54.
    Q4. After enactment of GST law, all departmental appeals filed in respect of Central Excise and Service Tax would _____________
    (a)    continue
    (b)    abate
    (c)    fail
    (d)    none of the above.
    Ans. (a) continue

    Sunil SmoSunil Smo
    Participant
    Post count: 13
    Topics: 0
    Replies: 13
    Been thanked: 3 times

    From the date of commencement of the Act, the (State) General Sales Tax/Value Added Tax Act, the Central Excise Act 1944, and the Central Excise Tariff Act 1985 shall apply only in respect of goods included in the entry 84 and entry 54 of the Union List and the State List respectively, of the Schedule VII to the Constitution of India.
    PROVIDED that the aforesaid restriction of the application of the statutes referred above shall not—
    Revive anything not in force or existing at the time at which the restriction takes effect; or
    Affect the previous operation of the unrestricted Acts or anything duly done or suffered thereunder; or
    Affect any right, privilege, obligation, or liability acquired, accrued or incurred under the unrestricted Acts; or
    Affect any tax, surcharge, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed under the provisions of the unrestricted Acts; or
    Affect any investigation, enquiry, assessment proceeding, any other legal proceeding or remedy in respect of any such tax, surcharge, penalty, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, enquiry, assessment proceeding, adjudication and other legal proceeding or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been so restricted.
    Affect any proceeding including that relating to an appeal, revision, review or reference, instituted before the appointed day under the earlier law and such proceeding shall be continued under the earlier law as if this Act had not come into force and the said law had not been repealed.
    The following Acts are hereby repealed, to the extent mentioned hereunder, namely:- (as per the taxes subsumed under GST …………….)
    The Entry Tax Act,……………………
    The Entertainment Tax, ……………………
    The Luxury Tax Act, ……………………
    Duty of Excise on Medicinal and Toilet Preparation Act, …………
    Chapter V of the Finance Act, 1994.
    The repeals referred to in sub-section (2) shall not—
    Revive anything not in force or existing at the time at which the repeal takes effect; or
    Affect the previous operation of the repealed Acts or anything duly done or suffered thereunder; or
    Affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed Acts; or
    Affect any tax, surcharge, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed under the provisions of the repealed Acts; or
    Affect any investigation, enquiry, assessment proceeding, any other legal proceeding or remedy in respect of any such tax, surcharge, penalty, interest, right, privilege, obligation, liability, forfeiture or punishment, as aforesaid, and any such investigation, enquiry, assessment proceeding, adjudication and other legal proceeding or remedy may be instituted, continued or enforced, and any such tax, surcharge, penalty, interest, forfeiture or punishment may be levied or imposed as if these Acts had not been enacted.
    Affect any proceeding including that relating to an appeal, revision, review or reference, instituted before the appointed day under the earlier law and such proceeding shall be continued under the earlier law as if this Act had not come into force and the said law had not been repealed.

    AOS ProductsAOS Products
    Participant
    Post count: 2
    Topics: 0
    Replies: 2
    Been thanked: 0 times

    thanks friends for better suggestion on GST, really each statements are helpful

Viewing 4 posts - 1 through 4 (of 4 total)

You must be logged in to reply to this topic.