TMI Blog2006 (12) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. A majority of the appeals before us are by manufacturers of non-alloy steel ingots and/or billets falling under sub-heading 7206.90/7207.90 of the Schedule to the Central Excise Tariff Act, 1985 or manufacturers of non-alloy steel hot re-rolled products falling under various sub-headings under headings 72.11, 72.13, 72.14, 72.15 or 72.16 of the said Schedule. The remaining appeals are by the Department. The above goods were notified by the Central Govt. under sub-section (1) of Section 3A of the Central Excise Act for compounded levy of duty of excise thereon. The duty was proposed to be levied on the basis of the Annual Capacity of Production (ACP for short) which was to be determined by the Commissioner of Central Excise under the relevant Rules made by the Central Govt. under Section 37 Excise Act read with sub-section (2) of Section 3A of the Central Excise Act. In respect of ingots and billets, the Induction Furnace Annual Capacity Determination Rules, 1997 were made and, in respect of hot re-rolled products, the Hot Re-rolling Mills Annual Capacity Determination Rules, 1997 were made for the said purpose. Based on the ACP so determined, duty of excise on the goods was to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against the very fixation of ACP by Commissioner. 5. It appears from the records that, in all these cases, the ACPs were determined and show-cause notices for demand issued prior to 1-3-2001, the date on which Rules 96ZO and 96ZP were omitted. In most cases, orders in adjudication of show-cause notices were also passed prior to the said date. In some cases, appellate orders (by appellate Commissioners) were also passed prior to the said date. There are also cases in which, adjudication orders or appellate orders or both were passed after 1-3-2001 (date of omission of the Rules) or even after 11-5-2001 (date of omission of Section 3A). 6. Learned Counsel Shri G. Natarajan led the arguments for the assessees and learned SDR Smt. R. Bhagya Devi argued for the Revenue. 7. Arguments for the assessees :- Section 3A was omitted on 11-5-2001 without any saving clause and therefore any duty liability of the assessees survived only up to that date. Any action taken under Section 3A was not saved by Section 6 of the General Clauses Act, 1897 inasmuch as the latter provision was not applicable to omission of the former. Section 6 of the General Clauses Act would apply only to repe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Determination Rules issued under Section 3A were rescinded, ACPs determined under these rules continued to have effect by virtue of Section 38A. Similarly, when Rules 96ZO and 96ZP were omitted, all departmental actions taken thereunder could validly continue by virtue of Section 38A. With the rescission of the Annual Capacity Determination Rules and omission of Rule 96ZO, etc. Section 3A was rendered redundant. The subsequent omission of this redundant provision of law did not have any bearing on the actions which were already saved under the provisions of Section 38A. It was also not correct to say that Section 3A of the Central Excise Act was omitted without a saving clause inasmuch as Section 6 of the General Clauses Act, 1897 saved the rights acquired and liabilities incurred under any omitted provision of a Central Act or Regulation in the same way as it protected similar rights and liabilities acquired/incurred under a repealed provision of a Central Act or Regulation. Learned SDR sought to elaborate the point by submitting that there was no distinction between repeal and amendment as the latter included abrogation or deletion of a provision of an existing statute as hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 106 (Bom.)]. It was also pointed out that, in the case of General Finance Co. (supra), the Court did not favour any distinction between omission and repeal and even went to the extent of observing that the relevant observation of the Constitution Bench in Rayala Corporation (supra) could be reviewed by a Larger Bench in an appropriate case. As regards continuance of proceedings under Rules 96ZO and 96ZP after the omission of these rules, learned SDR pointed out that, in the case of Shivalik Prints v. CCE, Faridabad - 2005 (180) E.L.T. 53 (Tri. - Del), this Tribunal allowed the abatement claim of the assessee (manufacturer of textile fabrics) for a certain period of closure of their hot air stenter beyond 1-3-2001 (the date of omission of Rule 96ZQ) on the ground that the right acquired by the assessee for abatement of duty under Rule 96ZQ prior to the date of its omission could be enforced after that date by virtue of the provisions of Section 38A of the Central Excise Act. 9. In his rejoinder, learned Counsel referred to Article 265 of the Constitution of India and submitted that no duty of excise could be levied or collected except by authority of law. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the provisions of this section . This charging provision was omitted by Parliament under Section 121 of the Finance Act, 2001 without any saving clause. The question arises as to whether, after such omission of the charging provision, duty of excise can be levied on the above goods and collected from the assessees. This question has been answered in the negative by the West Zonal Bench in the cases of Mitra Steel Alloys (P) Ltd. (supra) and M/s. Kundil Alloys (P) Ltd. (supra) and the view taken by the Bench was followed by the Bangalore Bench in the cases of Vijaya Steel Ltd. (supra) and M/s. Bannari Amman Steels (P) Ltd. (supra). Both the Benches relied on the Supreme Court s Constitution Bench decision in Rayala Corporation (supra) as also the Courts decisions in Kolhapur Canesugar Works (supra) and General Finance Co. (supra). All the decisions are on the basis that repeal is different from omission and therefore Section 6 of the General Clauses Act, which protects rights acquired and liabilities incurred under repealed enactments, is not applicable to omitted enactments. In the case of Mitra Steel Alloys (supra), West Zonal Bench of the Tribunal has held that simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or order made or issued under the Central Excise Act or any notification or order issued under such rule. The words omitted and omission are absent in the text of Section 38A. Neverthless, in the aforesaid cases, the Tribunal applied the provisions of Section 38A to the omission of Rules 96ZO and 96ZP. In the present case also, it is not in dispute that proceedings taken under Rules 96ZO and 96ZP were protected up to 11-5-2001 by Section 38A. Apparently, the word omitted has been accepted as equivalent to the word repealed used in the text of Section 38A. Similarly, the word omission has been accepted to be equivalent to the word repeal usee in the said text. If this logic of treating omission on par with repeal is applied to the omission of Section 3A of the Central Excise Act, it could very well be held that the promotion under Section 6 of the General Clauses Act is available to proceedings taken under Section 3A of the Central Excise Act after its omission. The West Zonal Bench in the cases of Mitra Steels Alloys P. Ltd. (supra), M/s. Kundil Alloys P Ltd. (supra) applied the logic to the omission of Rule 96ZO but, in respect of Section 3A, held that omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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