TMI Blog2012 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been concluded before the omission came into effect, could be concluded thereafter - in favour of assessee. - E/2333/2005, E/2983/2000, E/2379/2006 - - - Dated:- 4-7-2012 - Mr.M.V. Ravindran, Mr. B.S.V. Murthy, JJ. Shri J.C. Patel, Adv.: for Assessee. Shri S.G. Dewalwar, A.R.: for the Revenue. Per: M.V. Ravindran: By this common order, we dispose off the following appeals as they are inter-connected. E/2333/2005: This appeal is filed by the assessee against Order-in-Appeal No.280/ 2005/89(RAJ)/Commr.(A)/Raj, dt.7.4.2005, wherein the first appellate authority has allowed the appeal of the Department in respect of the demands which have been dropped in pursuance to the order of the Commissioner as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment dt.16.3.2012, has struck down the provisions of Rule 96ZQ as ultra vires and held that no order should have been passed subsequent to deletion of the said rules i.e. 96ZQ, 96ZP and 96ZO and Section 3A. He would take us through the said judgment, a copy of which he is producing today. 3. Ld.SDR, on the other hand, would submit that the provisions of Section 3 as it stood during the relevant period can be made applicable as held by Hon'ble High Court of Madras in the case of Beauty Dyers Vs UoI 2004 (166) ELT 27 (Mad.). 4. After considering the submissions made at length by both sides, we find that the issue lies in the narrow compass, inasmuch as all the three impugned order which are before us are inter-linked. The Order-in-App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court observed that no dispute thus remained on the point and the excise duty shall accordingly be assessed in respect of matters not yet closed and still pending before the concerned authorities. Thus, the subject matter of challenge before the Supreme Court was to the vires of rule 96ZO and section 3A of the Act. However, the said challenge was not prosecuted in view of the consensus arrived at between the parties. Before the Supreme Court, no contention was raised to the effect that in view of rules 96ZQ, 96ZP and 96ZO of the Rules being omitted with effect from 1st March, 2001 or that section 3A of the Act being omitted with effect from 11th May, 2001, any proceedings taken under the said provisions would be without authority of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only given it up but have also not deliberately canvassed the same. It was further pointed out that the petitioners in the petitions have placed reliance upon the decision of the Supreme Court in Union of India vs. Supreme Steels (supra) and have acquiesced with the fact that the concerned authorities could decide the matters which are pending before them. It was submitted that in the circumstances, it is not permissible for the petitioners to now raise the contention regarding lack of jurisdiction on the part of the adjudicating authority once having taken shelter of the said decision of the Supreme Court. 21.2 In this regard, a perusal of the averments made in the petition indicates that the petitioners have sought to raise a new p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree and cannot be cured by consent or waiver of the party. In the case of Rattan Lal Sharma vs. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and others, 1993 (4) SCC 10, the Supreme Court held that generally, a point not raised before the Tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only given up their challenge but had also not deliberately canvassed the same and as such, are estopped from raising such plea at this stage, does not merit acceptance inasmuch as the Supreme Court in the case of Chiranjilal Goenka (supra) has held that the defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party. In the circumstances, the court is of the view that the decision of the Supreme Court in the case of Union of India vs. Supreme Steels (supra), does not conclude the controversy involved in the present case nor are the petitioners precluded from raising the controversy as regards jurisdiction for the first time in this writ proceeding. 22. For the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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