TaxTMI 
TaxTMI 
2013 (11) TMI 784
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....fter referred to as the rules) issued under section 3A of the Central Excise Act, 1944 for the period 01.04.2000 to 23.11.2000 show-cause-notice was adjudicated and demands were confirmed along with the penalties under the provisions of rule 96 ZQ of the Central Excise Act, 1944 read along with their stenter rules. 4. Ld. counsel at the outset submits that the said provisions rule 962Q of the rule were under challenge before the Hon'ble High Court of Gujarat, in the case of Krishna Processors Vs. Union of India [2012 (280) ELT 186 (Guj.)] in a writ petition challenging the vires of the said rules. It is his submission that High Court has struck down the said rules as being ultra vires. He produces the copy of the judgment to their Lordsh....
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....the said position would prevail even after the omission of Section 3A of the Act? (iv) Whether in view of Section 132 of the Finance Act, 2001 everything done under the old provision is saved? (v) Whether Rule 96ZQ(5)(ii) of the Rules which does not provide for any inbuilt discretion in respect of the penalty to be imposed thereunder is ultra vires the provisions of the Constitution and the Act? and (vi) Whether the decision of the Supreme Court in the case of Union of India V. Supreme Steels and General Mills Ltd. (supra) concludes the controversy involved in the present case. 16- Dealing with the first question, it may be germane to refer to the provisions of Rule 96ZQ of the Rules. Rule 96ZQ makes provision for the procedure ....
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....titions the show cause notices came to be issued prior to deletion of Rule 96ZQ but the proceedings were not concluded when the said rule as well as Section 3A came to be omitted. The question that therefore arises is whether after Rule 96ZQ came to be omitted, the adjudicating authority could have initiated and continued with proceedings under sub-rule (5) of Rule 96ZQ of the Rules. The above reproduced paragraphs of the judgment clearly indicate that their Lordships were considering the same issue; after considering the relevant submissions made by both sides their Lordships in the following paragraph have struck down the provisions of Rule 96ZQ. 21- The next question that arises for consideration is as to whether the decision of th....
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....o contention was raised to the effect that in view of Rules 96ZQ, 96ZP and 96ZO of the Rules being omitted with effect from 1st March, 2001 or that Section 3A of the Act being omitted with effect from 11th May, 2001, any proceedings taken under the said provisions would be without authority of law. A perusal of the second part of the judgment indicates that it was contended on behalf of the manufacturers that the part of sub-rule (3) which provides that in case excise duty is paid according to the said sub-rule, in that event, the manufacturer shall not avail the benefit available under sub-section (4) of Section 3A of the Central Excise Act, 1944 is bad. In relation to the said contention, the Supreme Court placed reliance upon its earlier....
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....o now raise the contention regarding lack of jurisdiction on the part of the adjudicating authority once having taken shelter of the said decision of the Supreme Court. 21.2 In this regard, a perusal of the averments made in the petition indicates that the petitioners have sought to raise a new plea as regards lack of jurisdiction on the part of the adjudicating authority to adjudicate upon the show-cause notice on the ground that at the time when the impugned orders were actually passed, the provisions of Rules 96ZO, 96ZP and 96ZQ of the Rules and Section 3A of the Act stood deleted and as such, no orders could have been passed against the petitioners under the said provisions. In this regard it may be apposite to refer to the decision ....
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.... Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Others, 1993 (4) SCC 10, the Supreme Court held that generally, a point not raised before the Tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding, more so when the interference in the writ jurisdiction which is equitable and discretionary is not a must as indicated by the Supreme Court in A.M. Allison v. State of Assam, AIR 1957 SC 227, particularly when the plea sought to be raised for the first time in a writ proceeding requires investigation of facts. But if the plea though not specifically raised before the subordinate Tribunals or the administrative and quasi-judicial bodies, is raised befo....