2017 (1) TMI 82

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... annual production of capacity fixed by the Commissioner of Central Excise, Aurangabad. It is the case of the appellant that during the period in question, their factory was not functioning and the factory was closed in 1997 hence there cannot be any demand and even if so the benefit as provided under the provisions of Rule 96ZP are applicable and should be extended. 4. Learned Counsel relied upon the decision of the Tribunal in the case of Shiv Surendra Steel Rolling Engg. Mills v. CCE - 2014 (303) ELT 559 (Tri. Del.) which has held that on omission of Rule 96ZP of erstwhile Central Excise Rules, 1944 with effect from 01.03.2001, there cannot be any proceedings even if the show-cause notice is prior to omission of Rule 96ZP. 5. Learned D....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d fixed the annual capacity of production on 26 .10.1998 for the period in question which has not been contested by the appellant before the Commissioner. 7.1 We find strong force in the contentions raised by the learned Counsel that the judgment of the Tribunal in the case of Shiv Surendra Steel Rolling Engg. Mills (supra) would be squarely applicable in the case in hand. In the said judgment, the Tribunal had clearly recorded that once Rule 96ZP was omitted from 01.03.2001 along with other Rules, the demand cannot be assessed even if the show-cause notice is prior to omission of the said Rules. We reproduce the relevant paragraphs. "7. That the appellant is liable to the duty assessed by the impugned orders, under provisions of Rule 5 ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nder Rule 96ZQ of the Rules If yes, whether the said position would prevail even after the omission of Section 3A of the Act " 9. Relying on the judgment of the Supreme Court in Rayala Corporation Pvt. Ltd. v. Director of Enforcement reported in 1969 (2) SCC 412 (a judgment dealing with the consequences of omission of Rule 132A of the Defence of India Rules, 1962) and a subsequent judgment of the Supreme Court in Kolhapur Cane-sugar Works Ltd. v. Union of India reported in 2000 (119) E.L.T. 257 (S.C.), the High Court concluded (para 22) that no proceedings could have been initiated under the omitted Rules (Rules 96ZQ, 96ZP and 96ZO) and after omission of Section 3A of the Act, with effect from 11th May, 2001, in the absence of any saving ....