TaxTMI 
TaxTMI 
2024 (2) TMI 1539
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....from taking any action against the petitioner company including the actions of recovery of the compounded levy amount and interest pursuant to the OIO No. 40/Commr./HKJ/AHD-II/2010 dated18.11.2010 (Annexure-"J") passed by the Commissioner of Central Excise,Ahmedabad-II; (B) That Your Lordships may be pleasedto issue a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside OIO No. 40/Commr./HKJ/AHD-II/2010 dated18.11.2010 (Annexure-"J") passed by the Commissioner of Central Excise, Ahmedabad-ll by holding and declaring that no proceedings were permissible against the petitioner company for recovery of compounded levy amount for years 1998-99 and 1999-2000: (C) Pending hearing and final disposalof the present petition, Your Lordships may be pleased to restrain the respondents, their servants and agents from taking any action of coercive recovery against the petitioner company thereby staying implementation and executioin of OIO No. 40/Commr./HKJ/AHDII/2010 dated 18.11.2010 (Annexure-"J") passed by the Commissioner of Central Excise, Ahmedabad-II; (E) An ex-parte ad-interim relief interms of Para 8 (C) ab....
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....ng clause. 8.The Deputy Commissioner of Central Excise passed adjudication order dated 29.08.2002, determining the compounded levy of duties from the petitioner company on the basis that duties actually paid by the petitioner company on actual production were less than the duties payable on the basis of the APC determined for the factory and penalties and interest were also levied and demanded from the petitioner company. 9.The petitioner company preferred Special Civil Application No.11032 of 2002 against the APC determination and challenged the demand made by the aforesaid order. This Court by order dated 31.01.2003 decided the petition recording in the order a statement of the respondent that a decision on the pending application for permission to pay excise duties on actual production shall be taken in accordance with law after hearing the petitioner within six weeks. 10. The petitioner company therefore submitted two notes dated 01.04.2003 and 08.04.2003 before the respondent authorities and attended personal hearing in compliance of the direction of this Court. 11. The Commissioner of Central Excise by order dated 09.04.2003 rejected the application of the petitio....
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....e to pass a short order. The petitioners have challenged the Order dated 18th November 2010 passed by the Commissioner of Central Excise, Ahmedabad-II demanding differential duty of Rs. 33,52,443/= with interest. Such duty demand is made under Rule 96ZP of the Central Excise Rules, 1944 framed under Section 3A of the Central Excise Act. The duty due flows from the provision of Section 33A of the Central Excise Act, which was introduced by the Finance Act, 1997 w.e.f 14th May 1997 but was later on, omitted by the Finance Act of 2001 w.e.f 11th May 2001. Admittedly, against the impugned order of the Commissioner, there is statutory remedy available before the CESTAT. When confronted with this question, counsel for the petitioners stated that the petitioners wish to press the sole ground of challenge viz., that with the omission of Section 3A from the Central Excise Act, without any corresponding saving clause, no proceedings for levy of excise duty under deeming fiction of Section 33A would survive and the proceedings instituted by the Department, culminating into passing of the impugned order, therefore, is wholly without authority. It is stated that the petitioner....
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....ation, the petition is required to be admitted. However, we are of the opinion that no stay against recovery proceedings initiated under the impugned order of the Commissioner should be granted. Firstly, it is the duty demand pending since long; and secondly, the question of effect of Section 38A of the Central Excise Act introduced by virtue of Section 131 of the Finance Act 2001 on such proceedings shall have to be adjudged. For ready reference, Section 38A which was added to the Central Excise Act, 1944 is reproduced, thus :- "38A. Effect of amendments, etc., of rules, notifications or orders:Where any rule, notifications or order made or issued under this Act or any notification or order issued under such rule, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not- (a) revive anything not in force orexisting at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation ofany rule, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder, or ....
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....e Hon'ble Apex Court in case of Shree Bhagwati Steel Rolling Mills (Supra). It was submitted that in the case of Shree Bhagwati Steel Rolling Mills(Supra) the Hon'ble Supreme Court after analysing the various implication of the words "delete", "omit" and "repeal" has held that the word "omission" being tantamount to "deletion" is form of "repeal". It was further submitted that the Division Bench of this Court in case of M/s Cosmos Denim Vs. Commissioner of Central Excise-Ahmedabad-I dismissed the Tax Appeal No.425 of 2015 of the respondent Department relying upon the decision of Shree Bhagwati Steel Rolling Mills (Supra) wherein the Revenue has conceded that by the said decision, the issue is concluded with regard to the applicability of Section 3A pertaining to the period prior to the dates of omission of the said rules and Section 3A of the Central Excise Act would not be levied thereafter and the assessee is not liable to pay duty after such provisions are omitted with effect from 01.03.2001 and 11.05.2001 respectively. 20. On the other hand learned advocate Mr.Parth Divyeshwar appearing for the respondent authorities submitted that the decision of the Hon'ble Apex Court in c....
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....omission of the rules and Section 3A of the Act. It was pointed out by the learned advocate for the respondent authorities that sofar as the issue of whether the proceedings would continue or not, the Hon'ble Apex Court has not approved the decision of this Court in case of Krishna Processors (Supra). 23. Having heard learned advocates for the respective parties and considering the material placed on record as well as, as per the decision of this Court in case of Krishna Processors (Supra) which is upheld by the Hon'ble Apex Court in case of Shree Bhagwati Steel Rolling Mills (Supra), it would be germane to refer to the controversy in nutshell arising in these appeals. Sofar as the issue of merits are concerned, we refrain ourselves from addressing to such issues of determination of APC as the only issue which is required to be considered is, whether the respondent authorities would have continued with the proceedings under Rule 96ZP read with Section 3A of the Act after the omission of both the rules and the provisions in the Year 2001 or not. In the facts of the case, admittedly the show-cause notices were issued prior to the year 2001 however, the proceedings continued ....
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.... of the Act is saved by section 6 of the General Clauses Act and whether after the omission of section 3A of the Act with effect from 11th May, 2001 proceedings initiated under the rules 96ZQ, 96ZP and 96ZO of the Rules would survive? (iii) Whether section 38A of the Actsaves all obligations and liabilities incurred under rule 96ZQ of the Rules? If yes, whether the said position would prevail even after the omission of section 3A of the Act? (iv) Whether in view of section 132 ofthe Finance Act, 2001 everything done under the old provision is saved? (v) Whether rule 96ZQ(5)(ii) of theRules 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 theSupreme Court in the case of Union of India vs. Supreme Steels and General Mills Ltd. (supra) concludes the controversy involved in the present case?" 25. So far as issue raised in this petition is concerned, we are concerned with the issue no.2, as to whether the obligation or liability incurred under Section 3A of the Act is saved by the General Clauses Act an....
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....d liabilities incurred under the omitted provisions would be saved. A Constitution Bench of the Supreme Court in the case of M/s. Rayala Corporation (supra) held that section 6 of the General Clauses Act would not apply to the omission of a provision in an Act but only to repeal, omission being different from repeal. The aforesaid view has been reiterated by another Constitution Bench of the Supreme Court in the case of Kolhapur Canesugar Works Ltd. vs. Union of India (supra) wherein the court agreed that the earlier view taken in M/s. Rayala Corporation (supra) that section 6 of the General Clauses Act only applies to repeals and not to omission and applies when the repeal is of a Central Act or regulation and not of the rule. Insofar as section 3A of the Act is concerned, the second part would not be applicable since the present case relates to omission of a section. However, the first part namely that section 6 of the General Clauses Act only applies to repeals and not to omissions would be squarely applicable to the facts of the present case. Reliance placed by the Revenue on the decision of the Supreme Court in the case of General Finance Company (supra) is misconceived inasmu....
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....the Rules. Action, if any, can be taken only under the regular provisions of the Act." 26. Ultimately, in conclusion, it was held as under: "22. For the foregoing reasons, the petitions succeed and are accordingly allowed. Rule 96ZQ (5) (ii) of the Central Excise Rules, 1944 is held to be ultra vires Articles 14, 19(1)(g) and 265 of the Constitution of India. It is further held that after the omission of rules 96ZQ, 96ZP and 96ZO of the Rules with effect from 1st March, 2001 no proceedings could have been initiated thereunder and after the omission of section 3A of the Act with effect from 11th May, 2001, without any saving clause, no pending proceeding under the said rules which had not been concluded before the omission came into effect, could be concluded thereafter. The proceedings culminating into the impugned orders having been initiated/concluded after the omission of rules 96ZQ, 96ZP and 96ZO of the Rules and section 3A of the Act are, therefore, without any authority of law and as such, cannot be sustained. The impugned orders dated 9th November, 2001/1st January, 2002 (Special Civil Application No.1984 of 2002). dated 31^st December, 2003 (Special Civil ....
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....e Legal Thesaurus (Deluxe Edition) by William C Burton, 1979 Edition. The expression "delete" is defined by the Thesaurus as follows: "Delete: - Blot out, cancel, censor, cross off, cross out, cut, cut out, dele, discard, do away with, drop, edit out, efface, elide, eliminate, eradicate, erase, excise, expel, expunge, extirpate, get rid of, leave out, modify by excisions, obliterate, omit, remove, rub out, rule out, scratch out, strike off, take out, weed wipe out." Likewise the expression "omit" is also defined by this Thesaurus as follows:- "Omit:- Abstain from inserting, bypass, cast aside, count out, cut out, delete, discard, dodge, drop exclude, exclude, fail to do, fail to include, fail to insert, fail to mention, leave out, leave undone, let go, let pass, let slip, miss, neglect, omittere, pass over, praetermittere, skip, slight, transire." And the expression "repeal" is defined as follows:- "Repeal:- Abolish, abrogare, abrogate, annul, avoid, cancel, countermand, declare null and void, delete, eliminate, formally withdraw, invalidate, make void, negate, nullify, obliterate, officially withdraw, override, overrule, quash, recall, render invalid, re....