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2015 (9) TMI 205 - UTTARAKHAND HIGH COURT

2015 (9) TMI 205 - UTTARAKHAND HIGH COURT - 2015 (322) E.L.T. 465 (Uttarakhand) - Penalty imposed under proviso 3 (ii) of Rule 96ZO (3) of the Central Excise Rules, 1944 - Held that:- As per the dictum of the Apex Court in the case of Kolhapur Canesugar Works Ltd. (2000 (2) TMI 823 - Supreme Court of India), the normal effect of repealing a statute or deleting a provision would mean as if same statute has never been passed and such repealed or omitted statute shall be considered as a law which n .....

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f the Finance (No.2) Act, 2009, any action done or purported to be done pursuant to the notification dated 1st August, 1997, i.e. enactment of Rule 96ZO of the Central Excise Rules, 1944 were saved and held to be valid. Therefore, imposition of penalty against the petitioner by the order dated 06.08.2002 as confirmed / upheld by the Apex Court is valid and does not require any interference. - Decided against assessee. - Writ Petition No. 1998 of 2009 (M/S) - Dated:- 13-5-2015 - Hon ble Alok Sing .....

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two show cause notices dated 20.08.1998 and 07.04.1999. Petitioner is also seeking writ of mandamus commanding the respondents not to realize the penalty of ₹ 17,50,484/- from the petitioner pursuant to the impugned order dated 06.08.2002. Brief facts of the present case, inter alia, are that petitioner is the manufacturer of M.S. Ingots and factory of the petitioner is situated at Kotdwar, District Pauri Garhwal. Undisputedly, petitioner did not pay the excise duty from 01.09.1997 to 15. .....

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06.08.2002, penalty of ₹ 17,50,484/- was imposed against the petitioner (equivalent to the excise duty due) under proviso 3 (ii) of Rule 96ZO (3) of the Central Excise Rules, 1944. Feeling aggrieved, petitioner has preferred Statutory Appeal before the Commissioner (Appeals). Commissioner (Appeals), vide order dated 05.07.2004, was pleased to reduce the penalty from ₹ 17,50,484/- to ₹ 75,000/- only. Petitioner paid entire excise duty alongwith 18% interest and amount of penalt .....

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07.06.2007. Still feeling aggrieved, Revenue approached Hon ble Apex Court in Civil Appeal No. 7016 of 2008. Hon ble Apex Court, vide judgment and order dated 1st May, 2009, having placed reliance on the judgment of the Apex Court in the case of Union of India Vs. Dharmendra Textile Processors reported in 2008 (13) SCC 369, was pleased to allow the appeal filed by the Revenue. Meanwhile, Section 3A was omitted from the Central Excise Act, 1944 vide Section 121 of the Finance Act 14 of 2001 w.e. .....

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t reads as under :- In this case we are only concerned with the quantum of penalty and not with the imposition of penalty. In our view, therefore, Dharmendra Textile s case squarely applies. A new point is sought to be agitated before us relatable to imposition to penalty. It is open to the assessee to work out his rights, if so advised, in accordance with law. I.A. No. 2 is dismissed. Thereafter, petitioner has preferred present writ petition challenging the order dated 06.08.2002 and recovery .....

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sent writ petition in view of the order passed by the Hon ble Apex Court dated 1st May, 2009. Perusal of order dated 1st May, 2009 would reveal that Hon ble Apex Court has not given any liberty to the petitioner to assail order dated 06.08.2002 once again. The only observation made by the Hon ble Apex Court was that it was open to the assessee to work out his rights, if so advised, in accordance with law. In my considered opinion, since order dated 06.08.2002 stood confirmed / upheld by the Hon .....

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notifications issued under Section 37 of Central Excise Act and validation of certain actions taken. - (1) The notifications of the Government of India, in the Ministry of Finance (Department of Revenue) Numbers G.S.R. 448 (E), dated the 1st August, 1997, G.S.R. 503 (E) dated the 30th August, 1997 and G.S.R. 130 (E), dated the 10th March, 1998, issued under Section 37 of the Central Excise Act, shall stand amended and shall be deemed to have been amended retrospectively in the manner as specifie .....

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as amended by this sub-section had been in force at all material times. (2) Notwithstanding the omission of Section 3-A of the Central Excise Act by Section 121 of the Finance Act, 2001 (14 of 2001) and the expiration of the notifications referred to in sub-section (1), for the purposes of sub-section (1), the Central Government shall have and shall be deemed to have the power to make rules and issue or amend notifications under Section 3-A read with Section 37 of the Central Excise Act, retrosp .....

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to be done as if the amendments made by sub-section (1) had been in force at all material times and accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, - (a) any action taken or anything done or omitted to be done, during the said period in respect of any goods under the said notifications, shall be deemed to be and shall be deemed always to have been, as validly taken or done or omitted to be done as if the amendments made .....

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times. (c) recovery shall be made of such amounts of duty or interest or penalty or find or other charges which have not been collected or, as the case may be, which have been refunded, as if the amendments made by sub-section (1) had been in force at all material times. Explanation. - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force .....

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n, for all purposes, as validly and effectively taken or done as if the amendments made by sub-section (1) had been in force at all material times and notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority. Constitution Bench of Hon ble Apex Court in the case of Kolhapur Canesugar Works Ltd. and another Vs. Union of India and others reported in (2000) 2 SCC 536 has held as under:- The position is well known that at common law, the normal eff .....

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