TMI Blog2013 (11) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... onclude the same - any action taken under Rules 96ZQ, 96ZO and 96ZP of the Rules after Section 3A of the Act came to be omitted from the statute book without any saving clause, would be without authority of law and as such any orders passed in respect thereof after the omission of Section 3A of the Act would be non est. Virus of penalty provision - Held that:-Manufacturers of goods specified under Section 3A of the Act are evidently subjected to harsh treatment of unreasonable penalty under Rule 96ZQ(5)(ii) compared to manufacturers of other excisable goods – Decided in favour of Assessee. - Appeal No. E/1813 & 1814/06-DB - - - Dated:- 8-8-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Sh. P.M. Dave (Adv.) For the Respondent : Sh. J. Nagori (AR.) JUDGEMENT Per : Mr. M.V. Ravindran; These two appeals are directed against order-in-original No. 07/Commissioner/2006, dated 28.02.2006. 2. Heard both sides and perused the records. 3. The issue involved in this case is regarding the duty liability on the appellant under the provisions of Hot Air Stenter Independent Textile Processors Rules (hereinafter referred to as the rules) issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Whether Rule 96ZQ(5)(ii) of the Rules which does not provide for any inbuilt discretion in respect of the penalty to be imposed thereunder is ultra vires the provisions of the Constitution and the Act? and (vi) Whether the decision of the Supreme Court in the case of Union of India V. Supreme Steels and General Mills Ltd. (supra) concludes the controversy involved in the present case. 16- Dealing with the first question, it may be germane to refer to the provisions of Rule 96ZQ of the Rules. Rule 96ZQ makes provision for the procedure to be followed by the independent processor of textile fabrics. Sub-rule (1) thereof requires an independent processor of textile fabrics to debit the amount specified thereunder on the annual capacity of production as determined under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. Sub-rule (2) thereof provides for debiting the duty payable under sub-rule (1) in the current account maintained by the independent processor under sub-rule (1) of Rule 173G of the Rules. Sub-rule (3) says that 50% of the amount of duty payable for a calendar month under sub-rule (1) shall be paid by the 15th of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the period of whole year. On behalf of the Union of India, the learned counsel had submitted that there is no dispute with the offer made and also that the assessment shall be made for the whole period of one year namely, the financial year. The 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. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 raised at any stage. In Balvant N. Viswamitra and Others v. Yadav Sadashiv Mule (dead) through Lrs. and Others, (2004) 8 SCC 706, the Supreme Court held that a defect of jurisdiction of the court goes to the root of the matter and strikes on the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage even in execution or collateral proceedings. Again in Chiranjilal Shrilal Goenka v. Jagjit Singh, 1993 (2) SCC 507, the Supreme Court held that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree is made goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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