TMI Blog2006 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner surrendered its registration certificate on 1-6-2000. Thereafter on 19-8-2005, the impugned notice was issued to the petitioner demanding interest for the delayed payment of duty due for the period 1997-2000. 3. Learned counsel for the petitioner submitted that since the compounded levy scheme had come to an end, liability incurred there under by the petitioner did not survive. Reliance has been placed on judgment of the Hon'ble Supreme Court in Messrs Rayala Corporation (P) Limited and M.R. Pratap v. Director of Enforcement, New Delhi, 1969 (2) SCC 412 and Kolhapur Canesugar Works Limited v. Union of India, 2000 (119) E.L.T. 257(S.C.), for the proposition that omission of a provision does not amount to repeal and does not attract Section 6 of the General Clauses Act, 1897, which is an exception to the general rule that deletion of a provision brings all proceedings to an end unless a saving clause is enacted. 4, It was next submitted that demand of interest has to be made within reasonable period and after expiry of reasonable period, the demand must be held to be barred by limitation. Reliance has been placed on judgments of the Hon'ble Supreme Court in Government o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods of such other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this section. (2) Where a notification is issued under sub-section (1), the Central Government may, by rules, - (a) provide the manner for determination of the annual capacity of production of the factory, in which such goods are produced, by an officer not below the rank of Assistant Commissioner of Central Excise and such annual capacity shall be deemed to be the annual production of such goods by such factory; or (b) (i) specify the factor relevant to be production of such goods and the quantity that is deemed to be produced by use of such factor; and (ii) provide for the determination of the annual capacity of production of the factory in which such goods are produced on the basis of such factor by an officer not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be sold in India. Explanation 1 - For the removal of doubts, it is hereby clarified that for the purposes of Section 3 of the Customs Tariff Act, 1975 (51 of 1975), the duty of excise leviable on the notified goods shall be deemed to be the duty of excise leviable on such goods under the First Schedule and the second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), read with any notification for the time being in force. Explanation 2 - For the purposes of this section the expressions 'free trade zone' and 'hundred per cent export-oriented undertaking' shall have the meanings assigned to them in section 3." 11. The above provision was inserted in the Act by Finance Act 2 of 1997 with effect from 1-9-1997. The said provision provided for levy of excise duty by determining capacity of production of notified goods as against levy of excise duty on value of goods under Section 3 of the Act. The provision was later omitted w.e.f. 11-5-2001 by Finance Act 2001. Rules framed with reference to the provision also provided for payment of Excise duty on lump sum basis and the said scheme was applicable on furnishing of an option by the assessee. The provision was uphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturer to opt for payment of excise duty in accordance with sub-rule 3 of Rule 96Z0 on the basis of total furnace capacity installed as provided therein. The manufacturer cannot opt twice during one financial year first choosing to pay in accordance with sub-rule 3 of Rule 96ZO and thereafter to switch over to actual production basis under Section 3A(4) of the Act, in case it is less than the duty payable under sub-rule 3 of Rule 96Z0. The said sub rule is quite clear that the option under it is available subject to the condition that once having opted for it, benefit if any under sub-s. (4) of Section 3A of the Central Excise Act, 1944 shall not be available. We find that the controversy sought to be raised stands finally settled by a decision of this Court reported in JT 2000 (4) SC 77- Commissioner of Central Excise Customs v. M/s. Venus Castings (P) Ltd. It has been clearly held that two procedures namely one as provided under sub-s (4) of Section 3A of the Central Excise Act and the other as provided under sub-rule 3 of Rule 96Z0 of Central Excise Rules are alternative procedures and the assessee has to opt for one. Once having done so he cannot claim the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question was considered in the context of omission of a rule and it was held that to such a situation, Section 6 of the General Clauses Act, 1897 was not applicable. In the present case, we are neither concerned with a temporary statute nor concerned with omission of a rule. 17. In District Mining Officer and others v. Tata Iron and Steel Co. and an other AIR 2001 Supreme Court 3134, the question as to what is a "temporary statute ", was examined and it was observed: "19….. A Statute can be said to be either perpetual or temporary. It is perpetual when no time is fixed for its duration and such a statute remains in focus until its repeal which may be express or implied. But a Statute is temporary when its duration is only for a specified time and such a Statute expires on the expiry of the specified time, unless it is repealed earlier Admittedly, to a temporary Statute, the provisions of Section 6 of the General Clauses Act, 1897 will have no application A temporary Statute even in the absence of a saving provision like Section 6 of the General Clauses Act may not be construed dead for all purposes and the effect of expiry is essentially one of the construction of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed as if the rule, notification or order, as the case may be, had not been amended, repealed, superseded or rescinded. 21. Thus, even by omission of Section 3A, liability of the assessee the under was not wiped out. 22. The question is, accordingly, answered against the petitioner. Re: No. ii 23. In Citedal Fine Pharmaceuticals's case (supra), the question was as to validity of Rule 12 of the Medicinal Toilet Preparations (Excise Duties) Rules 1956, which provided for recovery of deficiency in duty without specifying any time limit. It was. observed that even in absence of period of limitation, power recovery had to be exercised within a reasonable period and question of reasonable period had to be decided in the facts and circumstances of each case. 24. In Kanhai Rain Thekedar's case (supra), in the order of original assessment, no demand of interest was raised. The assessee paid the assessee amount and after a period of four years, demand of interest was raised. It was held that limitation of three years had been laid down for rectification and demand of interest after four years was not within the reasonable time. In the present case, the assessee unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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