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TMI Blog2012 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuance to the order of the Commissioner as an adjudicating authority accepting the contention of the assessee-appellant for fixing the production capacity based on the annual production. E/2983/2000: This appeal is filed by the Revenue against the order of Commissioner, who has re-determined the annual production capacity of the respondent M/s Gujarat Steel Pvt.Ltd. in terms of sub-section (4) of Section 3A of Central Excise Act, 1944. (Sir, the impugned order is shown as Order No.118-R/2000, dt.28.06.2000 issued by the Member (L&J), CBE&C, New Delhi). E/2379/2006: This appeal is filed by the appellant company M/s Gujarat Steel Pvt.Ltd. against Order-in-Appeal No. 276/2006/226(RAJ)/Commr.(A)/ RP/Raj, dt.26.04.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order which are before us are inter-linked. The Order-in-Appeals against which the assessee is in appeal, were passed subsequent to the deletion of the provisions of Rule 96ZQ, 96ZP and 96ZO and Section 3A of Central Excise Act, 1944. We find that the Hon'ble High Court of Gujarat in their judgment in the case of Krishna Processors & others (supra) has, in relevant paragraphs (respectfully reproduced) held as under: 21. The next question that arises for consideration is as to whether the decision of the Supreme Court in the case of Union of India vs. Supreme Steels (supra) concludes the issue involved in the present case. A perusal of the aforesaid decision of the Supreme Court indicates that in the said batch of cases, vires of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs taken under the said provisions would be without authority of law. A perusal of the second part of the judgment indicates that it was contended on behalf of the manufacturers that the part of sub-rule (3) which provides that in case excise duty is paid according to the said sub-rule, in that event, the manufacturer shall not avail the benefit available under sub-section (4) of section 3A of the Central Excise Act, 1944 is bad. In relation to the said contention, the Supreme Court placed reliance upon its earlier decision in the case of Commissioner of Central Excise & Customs vs. M/s. Venus Casting (P) Ltd. (supra) wherein it has been held that two procedures namely one as provided under sub-section (4) of section 3A of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition indicates that the petitioners have sought to raise a new plea as regards lack of jurisdiction on the part of the adjudicating authority to adjudicate upon the show-cause notice on the ground that at the time when the impugned orders were actually passed, the provisions of rules 96ZO, 96ZP and 96ZQ of the rules and section 3A of the Act stood deleted and as such, no orders could have been passed against the petitioners under the said provisions. In this regard it may be apposite to refer to the decision of the Supreme Court in the case of Union of India vs. Sube Ram and others, (1997) 9 SCC 69, wherein it has been held that in case the court has no jurisdiction, the decision of the court would be a nullity and the same can be raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to be raised for the first time in the writ proceeding, more so when the interference in the writ jurisdiction which is equitable and discretionary is not a must as indicated by the Supreme Court in A.M. Allison vs. State of Assam, AIR 1957 SC 227, particularly when the plea sought to be raised for the first time in a writ proceeding requires investigation of facts. But if the plea though not specifically raised before the subordinate Tribunals or the administrative and quasi-judicial bodies, is raised before the High Court in the writ proceeding for the first time and the plea goes to the root of the question and is based on admitted and uncontroverted facts and does not require any further investigation into a question of fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction for the first time in this writ proceeding. 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 there under 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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