TMI Blog2016 (1) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that the facts of this case are identical to the facts in the case of M/s Alwar Processors Pvt. Ltd. [2014 (12) TMI 156 - CESTAT NEW DELHI] No strong arguments or facts have been presented to differ from the case. Respectfully agreeing with decision of the co-ordinate Bench in the case of M/s Alwar Processors Pvt, Ltd, being identical matter, we allow the appeal. The proceedings initiated in the letter of Commissioner dated 14.11.1998 for fixation of capacity different from the declaration originally filed by appellants would lapse, since the same has not been finalized before omission of Section 3A. - Decided in favor of assessee. - Appeal No. E/689/2006 - - - Dated:- 16-10-2015 - Anil Choudhary , Member (J) And Raju , Member ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e department's contention that once option under Rule 96ZO has been exercised, recourse cannot be had to assessment on the basis of actual production. However, for the purpose of determination of capacity, the matter was remanded back to the Tribunal. The appellant filed a review petition, which was dismissed. In September, 2001, the Tribunal remanded the matter to Commissioner again for determination of capacity. In December, 2005, the Commissioner re-determined the capacity in terms of Rule 96ZO( 3) of Central Excise Rules, 1944. The appellants are in appeal against the said order on the grounds that the capacity has been determined incorrectly and also on the grounds that with omission of the section 3A of the Central Excise Act, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee would be liable to pay duty based on such determination. 17.2 Rule 96ZQ of the Rules which provides for procedure to be followed by independent processors of textile fabrics, comes into play after the Commissioner of Central Excise determines the annual capacity of production on processed textile fabrics under Section 3A of the Act read with the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. Rule 96ZQ proceeds to lay the manner of payment of duty, payment of interest/penalty and such other incidental matters. Section 3A has been omitted by the Finance Act, 2001 with effect from 11th May, 2001 without any saving clause. On behalf of the Revenue, reliance had been placed upon the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the Supreme Court after finding force in the submissions advanced by the learned counsel, observed that it was constrained to follow the two decisions of the Constitution Benches of the Supreme Court in the case of M/s. Rayala Corporation Put. Ltd. and Kolhapur Canesugar Works Ltd. The court, accordingly held that the view taken by the High Court was not consistent with what was stated by the Supreme Court in the decisions aforesaid and the principle underlying Section 6 of the General Clauses Act as saving the right to initiate proceedings for liabilities incurred during the currency of the Act will not apply to omission of a provision in an Act but only to repeal, omission being different from repeal as held in the said decisions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings initiated before 1-3-2001 would survive after omission of Rule 96ZQ without saving clause w.e.f . 1-3-2001 and omission of Section 3 A without saving clause w.e.f . 11-5-2001. We find that this issue was considered by the Hon'ble Gujarat High Court in case of Krishna Processors v. Union of India (supra), wherein Hon'ble High Court considered the following issues:- Whether in view of the omission of Rule 96ZQ of the Rules M( i ) with effect from 1st March, 2001, the adjudicating authority could thereafter have initiated action for breach thereof by issuance of show cause notice and/or could have continued with the proceedings initiated but not concluded prior thereto? Whether any obligation or liability inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, which is based on the judgment of the Apex Court in the case of Rayala Corporation Ltd. (supra) and Kolhapur Cane Sugar Works Ltd. (supra), after omission of Rule 96ZQ w.e.f . 1-3-2001 and omission of Section 3A of the Act without saving clause w.e.f . 11-5- 2007, the proceedings initiated prior to omission which had not been concluded as on 11-5-2001 would lapse. In this case, though, initially the show cause notice issued prior to 1-3-2001 had been adjudicated by the Asstt . Commissioner, the Commissioner (Appeals) had set aside the orders and had remanded the matter for part of the period of dispute to the Asstt . Commissioner for de novo adjudication and de novo proceedings were concluded in 2004, long after omission of Rule 96ZQ w. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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