TaxTMI 
TaxTMI 
2008 (2) TMI 351
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....missioner under proviso to sub-rule (4) of Rule 3 of the Hot Air Stenter Independent Independent Textile Processor (Annual Capacity Determination) Rules, 1998. As per this order the number of chambers installed in the factory was determined as 14.14. Subsequent to verifications final Order No. 62/99, dated 23-8-1999 was passed inter alia holding that the number of chambers installed in the factory as 14.60. (b) The assessee went on appeal against the order of the Commmissioner and Hon'ble Tribunal vide order No. C-I/3351-52/WZB/2000 dated 17-7-2000 set aside the final order No. 62/99 dated 23-8-1999 and remanded the matter to the Commissioner for determination of the capacity after giving the appellant a reasonable opportunity to establish its contention that the gallery should not be taken into consideration in determining the capacity of the stenter. (c) The Commissioner in pursuance of the order of CESTAT has re-determined the annual capacity of production. He has held the number of chambers as 14.00, which is lower than that of both the provisional and final values arrived at earlier. This is thus favourable to them. 4. The learned advocate submits that....
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....termination of capacity or if the Tribunal has not given an order of remand of the proceedings, the earlier final order dated 23-8-1999 of the Commissioner under Section 3A and the rules made thereunder would have reached finality. If the appellate proceedings are not protected, then it can also affect others who might have paid excess duty and might be seeking relief by way of refund in the proceedings before the Tribunal. 7. The appeal is rejected in the light of the above. (Pronounced in Court on 2-2007) Sd/- (M. Veeraiyan) Member (Technical) 8. [Order per : Archana Wadhwa, Member (J)]. - I have gone through the order proposed by ld. Brother Shri M. Veeraiyan Member (Technical), rejecting the appeal. However, my views on the issues are different and as such a separate order is being recorded. 9. As the details relating to factual position have already been narrated in the order proposed by Shri M. Veeraiyan Member (Technical), I avoid repeating the same. Admittedly, the order impugned in the present proceedings was passed by Commissioner on 30-3-04, when Section 3A was not in existence having been omitted without a saving clause. Tribunal in the case of Mitr....
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....l Government on 25-9-1980. Writ against the same before the Hon'ble High Court was dismissed on 19-11-1984. The said order of the High Court was under challenged before the Hon'ble Supreme Court.From the above factual position, it is seen that except for issuance of the show cause notice on 27-4-1977, all the orders passed i.e. by the Assistant Commissioner; by Central Government and by the Hon'ble High Court was after the date of omission. The question before the Hon'ble Supreme Court was as to whether the proceedings having been initiated before the omission of the said Rules could be continued in law. Hon'ble Supreme Court answered the above question in negative. For better appreciation I reproduce para 38 of the said judgment. "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 had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour o....
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.... Member (Judicial) 15. [Order per : M.V. Ravindran, Member (J)]. - This difference of opinion between the Members is listed before me for resolving the issue. 16. The Hon'ble Member (Technical) has come to the conclusion that the appeal filed by the appellant is liable to be rejected even if the provisions of Section 3A of the Central Excise Act, 1944 were omitted from the statute, while Hon'ble Member (Judicial) has come to the conclusion that on the date of passing of the adjudication order, the learned Commissioner had no provisions under which the same can be passed. 17. Heard both sides at length and perused the records. 18. It is the submission of the learned Counsel appearing for the appellant that the issue involved in this case is regarding the determination of the Annual Capacity of Production under the provisions of Section 3A of the Rule made therein. It is his submission that the provisions of Section 3A are omitted from the statute of w.e.f. 11-5-2001 and as such, the order passed by the learned Commissioner in March, 2004 re-determining the capacity of the appellant is without jurisdiction. It is his submission that the issue is no mo....
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....ioner has no power or authority to pass the order and the said impugned order is without any jurisdiction. The Hon'ble Member (Technical) is of the view that de novo adjudication proceedings in pursuance of the specific remand order of the Tribunal, which was much before the omission of Section 3A of the Central Excise Act, 1944 was correct and the Commissioner has adjudicated the matter correctly. 21. In order to come to the conclusion and resolving the difference of opinion, it is necessary that current impugned order has to be read and I may read so :- "7. Now as per the order of the Hon'ble CESTAT and in line with the decision of the Hon'ble Supreme Court in case of Commissioner of C.Ex., Jaipur-II v. SPBL Ltd. - 2002 (146) E.L.T. 254 (S.C.), the Annual Capacity of Production determined vide Final Order No. 62/99 dated 23-8-1999 has to be re-determined (excluding "galleries") for the Financial Year 1998-99 & 1999-2000. The annual capacity of production is now being determined in the light of the aforesaid judgment as follows: - (i) The average value of Processed Textile Fabrcis (97-98): Rs. 18.40/sq. mtr. (ii) Average value/chambers/month as ....
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.... capacity of production referred to in Rule 2 shall be determined in the following manner, namely :- (1) ............................ (2) ............................. (3) The annual capacity of production of processed textile fabrics specified in Rule 2 in respect of a factory of an independent processor shall be determined keeping in view the following factors, namely :- (i) .................... (ii) .................... (iii) .................... (iv) the average value of production per chamber per month as :- (a) in the case of fabrics of average value of upto and including Rs. 30 per square meter, Rs. 11.72 lakhs, and (b) in the case of fabrics of average value of exceeding Rs. 30 per square meter, Rs. 15.63 lakhs; (c) the Commissioner of Central Excise shall, as soon as may be, after determining the annual capacity of production on the basis of the average value of processed textile fabrics and the number of chambers (of a hot air stenter) of the factory of the independent processor, by an order, intimate the same as also the rate of duty applicable to the independent process....
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....g excise duty. So, the Rule 3 of the rules issued in the Notification No. 42/1998 cannot be sustained as they are ultra vires Section 3A of the Act. 14. The Order rules issued under other Notifications which are impugned in the other writ petitions are only based on the rules issued in Notification No. 42/1998 and so the reasoning given above will apply to these rules also. So they also cannot be sustained consequently, they are set aside. But the petitioners are liable to pay duty of excise under Section 3 of the Act or under any other provisions contemplated for the same." It can be noted from the above reproduced portion of his lordship judgment has struck down the provisions of Rule 3 of Hot Air Stenter Independent Textiles Processors Annual Capacity Determination Rules as ultra vires of the provisions of Section 3A. 23. If the provisions of Rule 3 of Hot Air Stenter Independent Textiles Processors (Annual Capacity Determination) Rules are struck down as ultra vires of Section 3A, the findings of learned adjudicating authority as reproduced in para 7 clearly indicate that on the date of re-determining the capacity of production, even though on remand proceedings by the....