TaxTMI 
TaxTMI 
2015 (9) TMI 205
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....oviso 3 (ii) of Rule 96ZO (3) of the Central Excise Rules, 1944 with reference to demands raised by two show cause notices dated 20.08.1998 and 07.04.1999. Petitioner is also seeking writ of mandamus commanding the respondents not to realize the penalty of Rs. 17,50,484/- from the petitioner pursuant to the impugned order dated 06.08.2002. Brief facts of the present case, inter alia, are that petitioner is the manufacturer of M.S. Ingots and factory of the petitioner is situated at Kotdwar, District Pauri Garhwal. Undisputedly, petitioner did not pay the excise duty from 01.09.1997 to 15.01.1998 and, thereafter, from 05.07.1998 to March, 1999 amounting to Rs. 17,50,484/-, therefore, notices were issued to the petitioner on 20.08.1998 and....
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....9, having placed reliance on the judgment of the Apex Court in the case of Union of India Vs. Dharmendra Textile Processors reported in 2008 (13) SCC 369, was pleased to allow the appeal filed by the Revenue. Meanwhile, Section 3A was omitted from the Central Excise Act, 1944 vide Section 121 of the Finance Act 14 of 2001 w.e.f. 11.05.2001. Moreover, vide notification No. 6 /2001-C.E.(N.T.), dated 1st March, 2001, known as Central Excise (Third Amendment) Rules, 2001, Rule 96ZO was also omitted. In view of the omission of Section 3A of the Act and Rule 96ZO of the Rules, petitioner once again approached the Apex Court by way of moving IA No. 2 in Civil Appeal No. 7016 of 2008 which came to be dismissed by the Hon'ble Apex Court vide order d....
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....h law. In my considered opinion, since order dated 06.08.2002 stood confirmed / upheld by the Hon'ble Apex Court, present petition challenging the same very order and recovery pursuant thereto, is not maintainable and is hit by principle of res judicata. Moreover, when show cause notices were issued to the petitioner on 20.08.1998 and 07.04.1999, calling the petitioner as to why penalty should not be imposed to the tune of the excise duty due, Section 3A and Rule 96ZO were in existence and have not been omitted. Section 111 of the Finance (No.2) Act, 2009 reads as under :- "111. Amendment of notifications issued under Section 37 of Central Excise Act and validation of certain actions taken. - (1) The notifications of the Government of....
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....ted to be done under the notifications referred to in sub-section (1) at any time during the period commencing on or from the 1st day of August, 1997 and ending with the day, the Finance (No.2) Bill, 2009 receives the assent of the President, shall be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendments made by sub-section (1) had been in force at all material times and accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, - (a) any action taken or anything done or omitted to be done, during the said period in respect of any goods under the said notifications, shall be deemed to be ....
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....g with the day the Finance (No.2) Bill, 2009 receives the assent of the President shall be deemed to be, and to have always been, for all purposes, as validly and effectively taken or done as if the amendments made by sub-section (1) had been in force at all material times and notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority. Constitution Bench of Hon'ble Apex Court in the case of Kolhapur Canesugar Works Ltd. and another Vs. Union of India and others reported in (2000) 2 SCC 536 has held as under:- "The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it ....