TaxTMI 
TaxTMI 
2026 (6) TMI 949
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....2010 dated 10.08.2010/08.09.2010 (Annexure-D), Order/Letter F.No. IV/16-31/Vinod/2010-2011 dated 07.03.2011 (Annexure-E), Order No. A/1384/WZB/AHD/2012 & S/1979/WZB/ AHD/2012 dated 04.09.2012 (Annexure-G), whereby, the respondent has confirmed the liability and initiated recovery under the provision of Section 3A of the Central Excise Act, 1944 (for short 'the Act, 1944') and the Central Excise Rules, 1944 (for short 'the Rules, 1944') which are omitted, with effect from 11.05.2001 and 01.03.2001 respectively, and therefore, any action initiated or pending after the said dates lapse and no demand can be initiated / recovered. The petitioner herein in view of the above, has prayed for the following reliefs: "7. In the premises aforesaid, the petitioners, most humbly and respectfully pray as under:- A. That Your Lordships may be pleased to issue a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside Show Cause Notice No. V.52/3-33/DA/01 Dated 3.09.2001 (Annexure-A), Order No. A/1420/WZB/AHD/2010 Dated 10.08.2010/8.09.2010 (Annexure-D), Order/Letter F. No. IV/16-31/Vinod/2010-2011 dated 7.03.2011 (Annexure-E), Order No. A/1....
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....osed on several occasions for a period of not less than 7 days continuously, and therefore, the petitioner was entitled to abatement of compounded levy amount for such period as prescribed under Rule 96ZQ(7) of the Rules, 1944. The petitioner had not paid the compounded levy amounts for such period of pro-rata basis and had claimed abatement of duties also, in view of the admitted sealing and closure of the stenter. 4.3. The petitioner's abatement claim was rejected by the Additional Commissioner of Central Excise vide communication F.No. IV/16/28/MP/2000-P dated 08.02.2001. The petitioner filed an Appeal against the aforesaid communication and the Commissioner (Appeals), Ahmedabad allowed the Appeal vide OIA No. 127/2003 (Ahd-I) by order dated 03.03.2003 and remanded the case for de-novo adjudication with a direction to decide applicant's claim for abatement after giving adequate opportunity to the petitioner for defending their case. 4.4. In the meanwhile, as the abatement claim of the petitioner was rejected by the Additional Commissioner vide communication dated 08.02.2001 as referred to herein-above, a show cause notice F. No. V.52/3-33/DA/01 dated 03.09.2001 was issued ....
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....rder of denial of abatement claim and the consequent confirmation of demand of duty, but penalty under Rule 96ZQ of the Rules, 1944 was set aside. 4.8. Upon the order passed by the learned Tribunal, the respondent No. 3 issued recovery notices and directed the petitioner to pay the outstanding amount, failing which, steps to realize the amount under the provision of the Customs (Attachment of Property of Defaulters for the recovery Government Dues) Rules, 1995 was proposed. The respondent no.4 issued another order for recovery dated 07.03.2011 directing the petitioner to deposit the amount in question with interest and suggested to claim the refund of the same subsequently. 4.9. The petitioner filed an Appeal before the Commissioner (Appeals) against the said recovery order dated 07.03.2011, the said Appeal came to be dismissed, in view of the order dated 08.09.2010 passed by the learned Tribunal. 4.10. The petitioner thereafter filed Appeal against the said OIA dated 13.06.2011 before the learned Tribunal, which was also dismissed and the learned Tribunal has observe that statute prohibits them from reviewing their own order because the issue is already decided against th....
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....01, the Central Government omitted rules, 96ZP along with 96ZO and 96ZQ of the Central Excise Rules with reference to similar compounded levies for other products including the textile processors without any saving clause for pending proceedings. With effect from 11.05.2001, as per Section 121 of the Finance Act, 2001, Section 3A of the Central Excise Act, 1944 also came to be omitted without any saving clause. 6. The learned Senior Standing Counsel Mr. Utkarsh Sharma appearing on behalf of respondent no.2 relied on the affidavit-in-reply placed on record and submitted that the learned CESTAT, Ahmedabad has dismissed the Appeal of the petitioner by order dated 10.08.2010/ 08.09.2010, which was not challenged by the petitioner by preferring an Appeal before the High Court and in view thereof, the Department initiated recovery proceedings, and hence, the letter dated 07.03.2011 was issued to the petitioner. 6.1. It is further submitted that Section 132 of the Finance Act, 2001 provides for 'validation of certain action taken'. Thus, every act done under the old provisions is saved. The Notification no.6/2001-CE(NT) dated 01.03.2001, whereby, Rules 96Z0, 96ZP and 96ZQ we....
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....ue arising out of the various decisions rendered by the various High Courts by following the decision in case of Krishna Processors (Supra) rendered by this Court. The Hon'ble Apex Court in case of Shree Bhagwati Steel Rolling Mills (Supra) was mainly concerned with the levy of interest and penalty under Rules 96ZO, 96ZP and 96ZQ of the Central Excise Rules 1994 which were held to be ultra vires by this Court in the case of Krishna Processors (Supra) and the rules relating to levy of penalty were struck down as being ultra vires and violative of Articles 14 and 19(1)(g) of the Constitution of India. 10. At this stage, it is apposite to reproduce the part of the judgment in the case of Krishna Processors (supra), which is germane for adjudication of the dispute in question which reads thus: "15. In the background of the facts and contentions noted herein above, the court is called upon to decide as to: (i) Whether in view of the omission of rule 96ZQ of the Rules with effect from 1st March, 2001, the adjudicating authority could thereafter have initiated action for breach thereof by issuance of show cause notice and/or could have continued with the proceedings i....
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.... processors of textile fabrics, comes into play after the Commissioner of Central Excise determines the annual capacity of production on processed textile fabrics under section 3A of the Act read with the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. Rule 96ZQ proceeds to lay down the manner of payment of duty, payment of interest/penalty and such other incidental matters. Section 3A has been omitted by the Finance Act, 2001 with effect from 11th May, 2001 without any saving clause. On behalf of the Revenue, reliance had been placed upon the decision of the Supreme Court in the case of General Finance Company vs. Assistant Commissioner of Income Tax (supra) to contend that omission also amounts to a repeal of an enactment and as such, the provisions of section 6A of the General Clauses Act would be applicable and all proceedings and 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 re....
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....d 96ZO of the Rules would survive, or in other words what would be the position of obligations or liabilities incurred under rules 96ZQ, 96ZP and 96ZO of the Rules after the omission of section 3A. As noticed earlier, rule 96ZQ of the Rules only lays down the procedure to be followed by the independent processor of textile fabrics, the manner of payment of duty and the consequences of non-payment of duty within the prescribed period, etc. Likewise, is the case with rules 96ZP and 96ZO of the Rules. Rules 96ZQ, 96ZP and 96ZO are not the charging provisions. The charging provision is section 3A of the Act and rules 96ZQ etc. are merely machinery provisions. Thus, any liability which accrues is under section 3A of the Act. Accordingly, when the charging section itself is deleted without any saving clause, no recovery under the said section can be made by resorting to rule 96ZQ of the Rules. Action, if any, can be taken only under the regular provisions of the Act. XXX 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 Cons....
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.... is deleted, Section 6 would nonetheless apply. Secondly, it is clear, as has been stated by referring to a passage in Halsbury's Laws of England in the Fibre Board's judgment, that the expression "omission" is nothing but a particular form of words evincing an intention to abrogate an enactment or portion thereof. This is made further clear by the 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,....