TMI Blog2007 (12) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... cise and Service Tax Appellate Tribunal, New Delhi in Excise Appeals Nos. 5787-5788 of 2004. The Tribunal has dismissed the appeals filed by the appellants sustaining a preliminary objection that after omission of Section 3-A of the Central Excise Act, 1944 read with Rules framed thereunder, no proceedings could continue as there is no saving clause made by the Finance Act, 2001, which omitted Section 3-A of the Act. 2. Brief facts of the case are that the appellants are engaged in the process of man made fabrics with the aid of power and steam. During the period from December 1998 to November 1999, the appellants were working under the Compounded Levy Scheme which was framed under Section 3-A of the Act and Rule 96ZQ of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the revenue did not accept the decision of the Tribunal holding that the length of galleries was not includable for the purpose of determining the annual capacity of production (Annexures R-1 and R-2). Thereafter, additional show cause notices incorporating the ground of recovering the duty from the custom were served and it was proposed to be rejected on the ground of unjust enrichment (Annexure R-3 and R-4). 3. The appellants filed their replies to the show cause notices and took the plea that no ground for rejection of their claim for refund was available as the decision delivered by the Tribunal holding that the length of galleries is not includable for determining annual capacity had already attained finality up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent intention appears, such amendment etc. must not effect any right, principle, application or liability acquired, accrued or incurred under the amended, repealed or superseded notification or order. The aforementioned provisions of Section 38-A reads thus : "Section 38.A (Effect of amendments, etc. of rules, notifications or orders - Where any rule, notification or order made or issued under this Act or any Notification or order issued under such rule, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not - (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3-A of the Act. Therefore, the Tribunal ought to have decided the issue on merit, after taking into consideration various pleas raised by the appellants including the plea that the incidence of duty has not been passed on to the consumer because their sale price continued to be the same which was prevailing before the grant of benefit of duty under Section 3-A of the Act read with rule 96ZQ of the Rules. The Tribunal should have also decided other issues including the issue as to whether claim of refund made by the appellants was time barred. 6. In view of the above, the impugned order dated 23.11.2006 passed by the Tribunal is set aside and the appeals of the appellants are accepted. The matter is restored back on the file of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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