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TMI Blog2012 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... pplications be dismissed as not maintainable. This prayer was vehemently opposed on behalf of the appellants. In this situation, a detailed hearing was held on the jurisdictional issue. 2. The learned Additional Commissioner (AR) submitted that, with the substitution of a new text for the old text of Section 84 of the Finance Act, 1994 with effect from 19.8.2009 under the Finance (No.2) Act, 2009 (Act No.33 of 2009), the remedy of revision, by the Commissioner of Central Excise, of an order passed by an adjudicating authority subordinate to him stood replaced by the remedy of appeal to the Commissioner of Central Excise (Appeals). However, any order passed by an adjudicating authority subordinate to the Commissioner immediately before 19.8.2009 could be revised by the Commissioner even after the said date under the old Section 84 by virtue of Explanation contained in the new text of Section 84. But this did not mean that any order passed by the Commissioner in revision after 19.8.2009 could be appealed against under Section 86 of the Finance Act, 1994. Explanation to the new Section 84 did not operate as a saving clause to protect appellate remedy under Section 86 against any revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions made and arguments advanced on behalf of the appellants, we think it is necessary to reproduce the relevant provisions of law. Section 84 of the Finance Act, 1994 as it stood prior to 19.8.2009 reads as under: Revision of orders by the Commissioner of Central Excise. 84. (1) The Commissioner of Central Excise may call for the records of a proceeding under this Chapter in which an adjudicating authority subordinate to him has passed any decision or order and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit. (2) No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard. (3) The Commissioner of Central Excise shall communicate the order passed by him under sub-section (1) to the assessee, such adjudicating authority and the Board. (4) No order under this section shall be passed by the Commissioner of Central excise in respect of any issue if an appeal against such issue is pending before the Commissioner of Central Excise (Appeals). (5) No order under this section shall be passed after the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) under section 85, may appeal to the Appellate Tribunal against such order. (1A) ................. (2) The Commissioner of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioners of Central Excise under Section 73 or Section 83A or Section 84, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Sub-sections (1) and (2) of Section 86 of the Finance Act, 1994 as amended with effect from 19.8.2009 [vide Section 113(D) of Act No.33 of 2009] reads as follows: 86. Appeal to Appellate Tribunal (1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under section 73 or section 83A, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order. (1A) .......... (2) The Committee of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under Section 73 or Section 83A, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Section 6 of the General Clauses Act, 1897 reads as follows: 6. Effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to abrogate or annul the vested right of appeal when it amended Section 86(1) of the Finance Act, 1994 by omitting the words and figures "or section 84" from the text of Section 86 of the Act. According to the learned counsel, Explanation to the new Section 84 is enough indication of the legislative intent not to bar the continuance of revisionary proceedings beyond 19.8.2009 or to bar the exercise of the right of appeal against the revisionary order that may be passed by the Commissioner. According to the learned counsel, Explanation to the new Section 84 is a saving provision for continued operation of the old Section 84 and the old Section 86(1) to the extent of securing appellate remedy for the party who might be aggrieved by the order-in-revision passed in pursuance of the Explanation. In view of this legislative intention as understood by the learned counsel, it was further submitted that Section 6 of the General Clauses Act was squarely applicable to the instant case. He particularly relied on clauses (c) and (e) of Section 6. The learned counsel argued that, even when a new law was made to replace the old one, there should be an enquiry to ascertain whether the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Chemicals Ltd. vs. UOI: 2011 (268) E.L.T. 296 (S.C.) in the context of distinguishing between a substantive right and a procedural right. He submitted that the right of appeal under Section 86 of the Finance Act, 1994 was a substantive right which was prospective in operation. In his view, the department was treating Section 86 as a procedural provision. The learned counsel argued that Section 86 in its entirety should be considered as a substantive provision. Once the right of appeal was established, it could not be curtailed on any procedural ground. In this context, reliance was also placed on CCE vs. A.S. Bava: 1978 (2) E.L.T. J333 (S.C.) 7. The learned counsel, representing the appellants in ST/401/2011 and ST/2114/2011, referred to CBEC's circular viz. DOF No.334/13/2009-TRU dated 6.7.2009. He submitted that the amendments proposed for Sections 84 and 86 of the Finance Act, 1994 were not intended to affect the operation of the existing provisions insofar as "the cases decided" before the date of enactment of the Finance (No.2) Bill, 2009 were concerned. Claiming support from this clarification, the learned counsel argued that the orders passed after 19.8.2009 by Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt against an order passed by an adjudicating authority subordinate to Commissioner of Central Excise), with effect from 19.8.2009 for the old text of Section 84 which had provided for revision of such order, the remedy of revision by Commissioner came to be replaced by the remedy of appeal to the Commissioner (Appeals). But Explanation to the new Section 84 contains a rider to this legislative change. It says that an order passed immediately before 19.8.2009 by an adjudicating officer subordinate to a Commissioner of Central Excise shall continue to be dealt with by the Commissioner as if the Section had not been substituted. In the present cases, the Commissioners concerned appear to have acted in pursuance of this Explanation. The show-cause notices proposing revision of orders passed by adjudicating officers subordinate to Commissioners of Central Excise were issued under Section 84 of the Finance Act, 1994 on various dates prior to 19.8.2009. The revisionary proceedings were under way when the amendments to Section 84 and Section 86 were brought into force. Explanation to the new Section 84 obligated the Commissioners concerned to continue the revisionary proceedings as if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 15.1. It is not in dispute in the present cases that a lis between the department and any assessee commenced with the issue of Section 84 show-cause notice. In each of these cases, a show-cause notice was issued under the erstwhile Section 84 of the Finance Act, 1994 to the assessee by the jurisdictional Commissioner of Central Excise. The proposal in that notice was to revise the decision taken in favour of the assessee by the original authority, and the same was contested. After hearing the assessee, the Commissioner passed an order-in-revision against the assessee after 19.8.2009. Applying the Hon'ble Supreme Court's ruling (supra), we hold that the institution of revisionary proceedings by the Commissioner through issuance of show-cause notice u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding statute viz. the Finance (No.2) Act, 2009. The question now arises as to whether such right of appeal was taken away by necessary implication or intendment. This in our view is a matter for enquiry. One has to make an endeavour to gather the legislative intendment behind the amendment of law. We have got to know whether the new enactment manifested an intention to destroy the old rights and liabilities. Explanation to the new Section 84 of the Finance Act, 1994 is a manifestation of the legislative intent to keep the provisions of the old Section 84 alive beyond 19.8.2009 to enable the revisionary authority, which issued show-cause notice under the old Section to the assessee prior to the said date, to go ahead with the revisionary proceedings and pass an order under the old Section 84. The legislature, while enacting the above Explanation, was aware of the fact that a right of appeal had been vested in the litigant under the old Section 86 on the date of institution of revisionary proceedings under the old Section 84. Having made it mandatory for the Commissioner of Central Excise (revisionary authority) to continue his revisionary proceedings and pass an order (which was app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered to leave a person remediless. It has been argued on behalf of the department that the remedy available against a revisionary order passed by Commissioner of Central Excise after 19.8.2009 lies in the writ jurisdiction of High Court. The meaning of this argument is that an assessee (or the department itself) must file a writ petition before the High Court, if aggrieved by any order passed by the Commissioner of Central Excise as revisionary authority after 19.8.2009 under the old Section 84 of the Finance Act. This argument overlooks the position that the writ jurisdiction of a High Court under Article 226 of the Constitution is an extraordinary and discretionary jurisdiction which cannot be invoked as a matter of right. Further, it may not be prudent to think that Parliament expected the aggrieved party to invoke the Constitutional remedy of writ against an order of Commissioner of Central Excise when the statutory remedy of appeal to High Court or Supreme Court has been prescribed even against orders of the CESTAT. 17. We have found no evidence of any legislative intent to bring to an abrupt end on 18.8.2009 the remedy of appeal to this Appellate Tribunal against an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. We have undertaken such enquiry in another context vide para (15.3) of this order and have found no evidence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. In other words, these appeals and applications are maintainable by virtue of Section 6 of the General Clauses Act also. 19. We could not find any support to the appellants from D.O.F. No.334/13/2009-TRU dated 6.7.2009 which said: " All cases decided" before this date (19.8.2009) would continue to be governed by the existing provisions. In this statement, there is hardly any "clarification" worth considering. The counsel for one appellant raised the plea of estoppel against the Department on the basis of the so-called 'preamble' to the impugned order. This plea is hit by the Hon'ble Delhi High Court's judgment in Commissioner vs. Singapore Airlines Ltd.: 2010 (259) E.L.T. 642 (Del. ) cited by the learned Additional Commissioner (AR). 20. We have also perused the Hon'ble Supreme Court's judgment in M/s. Ambalal Sarabhai vs. M/s. Amrit Lal & Co. & Anr. (supra) cited by the learned Additional Commissioner (AR). That was a case which arose under the Delhi Rent Control Act. When an eviction petition filed by the landlord against the tenant on the ground of subletting was pending in the Court of Rent Controller, Section 3 of the Rent Control Act came to be amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties gets crystalised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c) of Section 6, refers the words any right, privilege, obligation acquired or accrued under the repealed statute would not be affected by the repealing statute. We may hasten to clarify here, mere existence of a right not being acquired or accrued, on the date of the repeal would not get protection of Section 6 of the General Clauses Act. [underlining added]. The learned Additional Commissioner (AR) relied on the last underlined statement, which is but only to the effect that mere existence of a right not being acquired or accrued on the date of repeal would not get the protection of Section 6 of the General Clauses Act. The present case is not one of right not having been acquired or accrued. It is a case of lis having commenced and rights and obligations having crystallized prior to 19.8.2009. In Ambalal Sarabhai's case (supra), the apex court recognized the landlord's vested right and allowed them the benefit of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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