TMI Blog2010 (3) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai ( Tribunal for short). Appeal was admitted vide order dated 29th September, 2005 to consider the following substantial question of law: Whether the provisions of section 11AC are applicable to cases where show cause notice is issued subsequent to the enforcement of provisions of section 11AC i.e. 28.9.1996 even though the period of dispute is prior to 28.9.1996? 2. Section 11AC of the Act is brought on the statute book for the first time by the Act of 33 of 1996 with effect from 28th September, 1996. The show cause notice was issued on 12th June, 1998 for the period prior to the period 28th September, 1996, which was subsequently confirmed in an order-in-ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th September, 1996. He relied upon the case of Commissioner of Central Excise, Coimbatore v. Elgi Equipments Ltd. reported ig in [2001 (9) SCC 601] and submitted that it has been held that this Section only operates prospectively and not retrospectively. He submitted that thus penalty could not have been imposed. We find that no such point had been raised before the Tribunal and no such point is raised even in the Memorandum of Appeal before this Court. In any event the adjudication had taken place in 1998 at which time Section 11AC was on the statute book. 6. Per contra, Mr.Baya, learned counsel appearing for the respondent submits that the aforesaid question is squarely covered by the decision of the two judge bench of the Apex Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration already passed. 8. Mr.Baya also relied upon the judgment of the Orissa High Court in the case of J.K.Corporation Ltd. v. Commissioner of C.Ex. Cus., Bhubaneshwar, 2007 (210) ELT 501 (Ori.); wherein the High Court has taken a view that section 11AC of the Act is prospective in operation and any illegality committed prior to insertion of section 11AC ibid cannot be subject matter of penalty under section 11AC ibid. 9. Mr.Baya further pointed out that the High Court of Madhya Pradesh in the case of Jindal Strips Ltd. v. Union of India, 2003 (158) ELT 439 (M.P.) has also taken a view that section 11AC of the Act is prospective in operation. 10 Mr.Baya in order to counter the submissions of Mr.Pardeshi, who has placed relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that question of law framed by this Court needs to be answered in favour of the assessee and against the Revenue. Consideration : 13. Having heard, it is not in dispute that the observation made by the Apex Court in para-22 [extracted in para-5 (supra)] in the case of Impression Prints (supra) cannot constitute ratio. There is no threadbare discussion or reasoning given in the said finding. These observations cannot be said to be the ratio of the judgment. 14. The two judge Bench judgments in the case of Lal Mining Engg.Works and Elgi Equipments Ltd. (supra) take a contrary view and hold that section 11AC of the Act is prospective in operation. No doubt, these judgments are also by the co-ordinate bench but in the said judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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