TMI Blog2011 (2) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri R.J. Oza, Sr. Standing Counsel, for the Respondent. [Judgment per : Harsha Devani, J. (Oral)]. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following substantive relief : (A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus or any other writ or Direction quashing and setting aside the impugned Rule 57-CC of the Central Excise Rules, 1944, at Annexures-D and E, as ultra vires the provisions of Section 3 of the Central Excise Act, 1944 read with the Central Excise Tariff Act, 1985, and consequently ultra vires the provisions of Article 19(1)(g) of the Constitution of India; (B) YOUR LORDSHIPS may be pleased to issue a writ of Declaration or any other writ or Direction declaring the said Rule 57CC at Annexures-D and E, as ultra vires provisions of Constitution of India; (C) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus and/or a writ in the nature of Mandamus or any other writ or Direction quashing and setting aside Order-in-Original No. 75 to 76/D/2000 dated 30-3-2000 passed by the 3rd respondent. 2. The petitioner No. 1 herein is a Company registered under the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty, should not be recovered from them under Rule 57CC(1) of the Rules. The amount sought to be recovered were quantified in the show cause notices at Rs. 2,63,566/- and Rs. 42,89,158/- respectively. The show cause notices culminated into an Order-in-Original dated 30-3-2000 whereby the demand came to be confirmed along with penalty of Rs. 2000/- and interest at 20% under Section 11AA of the Central Excise Act, 1944 (the Act). Being aggrieved, the petitioners have filed the present petition, seeking the reliefs noted hereinabove. 3. At the outset, Mr. Paresh Dave, learned advocate for the petitioners submitted that the petitioners do not press the relief prayed for vide Paragraphs 13(A) and (B) of the petition, whereby the petitioners have challenged the constitutional validity of Rule 57CC of the Central Excise Rules, 1944. 4. The learned advocate for the petitioners invited the attention of the Court to the relevant provisions of the Rules as well as to a decision of the Apex Court in the case of Chandrapur Magnet Wires (P) Ltd. v. Collector of C. Excise, Nagpur, 1996 (81) E.L.T. 3 (S.C.), a decision of this High Court in the case of CCE, Ahmedabad-II v. Maize Products, 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the said rule where a manufacturer was engaged in the manufacture of any final product which was chargeable to duty as well as any other final product which was exempt from the whole of the duty of excise leviable thereon or was chargeable to nil rate of duty and the manufacturer took credit of the specified duty on any input (other than inputs used as fuel) which was used or ordinarily used in or in relation to the manufacture of both the aforesaid categories of final products, whether directly or indirectly and whether contained in the said final products or not, the manufacturer shall, unless the provisions of sub-rule (2) are complied with, pay an amount equal to eight per cent of the price (excluding sales tax and other taxes, if any, payable on such goods) of the second category of final products charged by the manufacturer for the sale of goods at the time of clearance from their factory by adjustment in the credit account maintained under sub-rule (3) of Rule 57G or in the accounts maintained under Rule 9 of sub-rule (1) of Rule 173G or if such adjustment is not possible for any reason, by cash recovery from the manufacturer availing of the credit under Rule 57A. Sub-ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of an application under sub-section (2), verify the correctness of the amount paid within a period of two months from the date of receipt of the application and in case the amount so paid is found to be less than the amount payable, he shall call upon the applicant to pay the differential amount along with interest, which shall be paid within a period of ten days from the date of receipt of the communication from the Commissioner in this regard. (4) Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done, at any time during the period commencing on and from the 1st day of September, 1996 and ending with the 31st day of March, 2000, relating to the provisions as amended by sub section (1), shall be deemed to be and deemed always to have been, for all purposes, as validly and effectively taken or done as if the amendment made by sub-section (1) had been in force at all material times. (5) Notwithstanding the supersession of the Central Excise Rules, 1944, for the purposes of sub-section (1), the Central Government shall have and shall be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule shall be substituted, namely : 57CCC. Reversal of Actual Credit. Where a dispute relating to adjustment of credit on inputs used in or in relation to exempted final products relating to the period beginning on the 1st day of March, 1997 and ending with the 31st day of March, 2000 (both days inclusive) is pending on the date on which the Finance Bill, 2010 receives the assent of the President, then, notwithstanding anything contained in sub-rules (1) and (2) of rule 57C and sub-rule (1) and sub-rule (9) of rule 57CC, a manufacturer availing credit of specified duty in respect of any inputs, other than inputs used as fuel, and manufacturing final products which are chargeable to duty and also other final products which are not so chargeable to duty, shall pay an amount equivalent to such credit attributable to inputs used in, or in relation to the manufacture of, such final products which are not chargeable to duty, before or after the clearance of such goods : Provided that the manufacturer shall pay an interest at the rate of twenty-four per cent, per annum from the date of clearance of goods till the date of payment of the said amount. 1st day of March, 1997 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of specified duty in respect of inputs used for manufacture of final products which are chargeable to duty as also other final product which are not chargeable to duty or chargeable to Nil rate of duty, by payment of amount equivalent to the credit attributable to input used in or in relation to the manufacture of such final products which are not chargeable to duty or chargeable to nil rate of duty before or after the clearance of such goods. Sub-section (2) of Section 69 of the Finance Act, 2010 provides that where a person opts to pay the amount in accordance with the provisions of Central Excise Rules, 1944 as amended by sub-section (1), he is required to pay the amount along with interest specified thereunder and make an application to the Commissioner of Central Excise along with documents as laid down therein within a period of six months from the date on which the Finance Bill, 2010 receives the assent of the President. 15. Examining the facts of the present case in the light of the newly amended statutory scheme, in the present case the petitioners were bona fide prosecuting theremedy before this Court, hence, pending the petition they have not made any application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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