Appeal allowed due to lack of jurisdiction after omitting Section 3A. Commissioner's order set aside.

The appeal was allowed, and the Commissioner's re-determination order was set aside due to the lack of jurisdiction following the omission of Section 3A. The third member resolved the difference of opinion by agreeing with the minority view that the Commissioner's order was without jurisdiction. They emphasized that proceedings should not continue after the omission of the enabling provision, as per the Supreme Court's judgment in a similar case.

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Issues Involved:
1. Re-determination of annual capacity of production of processed textile fabrics.
2. Validity of the Commissioner's order post-omission of Section 3A of the Central Excise Act, 1944.
3. Applicability of subordinate legislation after the omission of the parent provision.

Issue-wise Detailed Analysis:

1. Re-determination of Annual Capacity of Production:
The appeal concerns the re-determination of the annual capacity of production of processed textile fabrics by the Commissioner, as per the Tribunal's remand order dated 17-7-2000. Initially, the capacity was determined based on the number of chambers in the factory, which was later revised to 14.60 chambers. The Tribunal remanded the case to re-determine the capacity, excluding the gallery from consideration. The Commissioner re-determined the capacity as 14.00 chambers, which was favorable to the appellant.

2. Validity of the Commissioner's Order Post-Omission of Section 3A:
The appellant argued that the Commissioner's order was unsustainable because Section 3A had been omitted without a saving clause, rendering any proceedings under it void. The appellant relied on the Tribunal's judgment in Mitra Steel Alloys Pvt. Ltd. v. CCE, Raigad, which held that subordinate legislation could not survive beyond the life of the parent provision. The Tribunal noted the omission of Section 3A and related rules before the Commissioner's re-determination order in 2004.

3. Applicability of Subordinate Legislation After Omission of Parent Provision:
The Tribunal discussed the legal changes, including the rescission of the Induction Furnace Annual Capacity Determination Rules, 1997, and the omission of Rule 96(ZO) and Section 3A. The Tribunal distinguished the current case from Mitra Steel, noting that the provisional and final determinations occurred before the omission of Section 3A. The Tribunal emphasized that the omission of Section 3A did not nullify the Tribunal's remand order, and the Commissioner's order was in furtherance of the Tribunal's directive.

Majority and Minority Opinions:

Majority Opinion:
The majority held that the appeal should be rejected. They reasoned that the omission of Section 3A did not invalidate the Tribunal's remand order, and the Commissioner's re-determination was in compliance with the Tribunal's directive. They argued that the proceedings were protected and could continue despite the omission of Section 3A.

Minority Opinion:
The minority opinion, delivered by Member (Judicial), held that the Commissioner's order was without jurisdiction because it was passed after the omission of Section 3A, which lacked a saving clause. They argued that the proceedings, including appellate and remand stages, should lapse if the parent provision was omitted without a saving clause. They cited the Supreme Court's judgment in Kolhapur Canesugar Works Ltd. v. Union of India, which held that pending proceedings should not continue after the omission of the enabling provision.

Resolution of Difference of Opinion:
The third member, Member (Judicial), resolved the difference by agreeing with the minority opinion. They concluded that the Commissioner's order was without jurisdiction because it was based on a provision (Section 3A) that had been omitted without a saving clause. They emphasized that the adjudicating authority could not pass an order under a rule declared ultra vires by the High Court. Consequently, the appeal was allowed, and the Commissioner's order was set aside.

Final Decision:
The appeal was allowed, and the Commissioner's re-determination order was set aside due to the lack of jurisdiction following the omission of Section 3A.

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