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Commissioner of Central Excise Commissionerate, Chandigarh Versus M/s Dhiman Industries, Mandi Gobindgarh

2015 (10) TMI 852 - PUNJAB & HARYANA HIGH COURT

Determination of annual capacity - duty liability under Rule 96ZP(3) - Held that:- Court in Bansal Alloys & Metals Pvt. Ltd's case (2010 (11) TMI 83 - PUNJAB & HARYANA HIGH COURT) while deciding the question of vires of Rules 96ZO(3), 96ZP and 96ZQ of the Rules held the said provisions to the extent of providing for mandatory minimum penalty without mens rea and without any element of discretion as excessive and unreasonable restriction on fundamental rights being arbitrary and were accordingly .....

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stoms, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal") claiming the following substantial questions of law:- i) Whether it was legally correct for the Hon'ble Tribunal to consider the challenge to the vires of Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997, in the light of the judgment of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Chandigarh v. PEPSU Steel Rolling Mil .....

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ay of the month succeeding the month in which the annual capacity of production was determined on final basis by the order of the Hon'ble Supreme Court whereas interest should have been charged under Rule 96ZP(3) from the date when the duty was payable as per Final Order dated 12.05.2000? iii) Whether under the compounded levy scheme the provisions of erstwhile Rule 96ZP of Central Excise Rules, 1944 permitting imposition of penalty equal to the amount of duty for delay in payment of duty, w .....

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Whether the provisions of Section 38A of the Central Excise Act, 1944 inserted vide Section 131 of the Finance Act, 2001 (Validation of the action taken has been provided by virtue of the Section 132 of the Finance Act, 2001) shall be applicable in respect of obligation and liabilities incurred under Rules 96ZO and 96ZP of the erstwhile Central Excise Rules, 1944 before the same were omitted, notwithstanding the omission of Section 3A w.e.f. 11.05.2001? 2. The assessee was working under the comp .....

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tion of annual capacity of production. The department filed an appeal before this Court against the order dated 5.1.2001 and this Court vide order dated 21.10.2003 dismissed the said appeal. Thereafter, the department filed Special Leave Petition before the Apex Court. The Apex Court vide order dated 6.7.2001 passed in Civil Appeal No. 8345 of 2004 set aside the order of the Tribunal and restored that of the Commissioner dated 12.5.2000 and also imposed a cost of ₹ 50,000/- upon the respon .....

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was not payable as the unit had paid the duty which was payable under the third proviso to Rule 96ZP(3) of the Rules. Feeling aggrieved, the department filed an appeal before the Tribunal who vide order dated 21.8.2014 (Annexure A-2) dismissed the appeal in terms of judgment of this Court in Bansal Alloys & Metals Pvt. Ltd. v. Union of India, 2010(260) ELT 343 (P&H). Hence, the present appeal. 3. We have heard learned counsel for the appellant. 4. It is not disputed that the issue raise .....

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led by the revenue was dismissed. This Court in Bansal Alloys & Metals Pvt. Ltd's case (supra) while deciding the question of vires of Rules 96ZO(3), 96ZP and 96ZQ of the Rules held the said provisions to the extent of providing for mandatory minimum penalty without mens rea and without any element of discretion as excessive and unreasonable restriction on fundamental rights being arbitrary and were accordingly declared to be ultra vires the Act and the Constitution. It was recorded as u .....

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