TMI Blog2005 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry revealed that there was neither a Central Excise Registration Certificate nor any records maintained for the fabrics which were mercerised and cleared. 3.A show cause notice was issued on 18-10-1995 to the appellant company calling upon the appellant to explain as to why payment of duty on the clearances made should not be demanded and as to why the goods seized should not be confiscated and penalty imposed under Rules 9(2), 52A, 173Q and 226 of Central Excise Rules, 1944. The appellant company submitted its explanation indicating that the process which it was indulged in was neither coming under mercerisation nor under any process mentioned under the heading 5206 and that the product is rightly classifiable under the heading 5205. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed within the time limit of four years from the date of order as per Section 35C(2) of Central Excise Act, 1944 and though this Section has been amended restricting the time limit of filing of miscellaneous petition, the pre-existing right of appeal could not be destroyed by amendment unless the amendment was retrospective in operation and the right of appeal is a substantive right which could not be disturbed except by express enactment. 7.However, the second respondent found that the said rectification petition is time-barred. Since the decision rendered by the West Zonal Bench in the case of Shree Warana Sahakari Dudh Utpadak Pradriya Sangh Ltd. reported in 2003 (155) E.L.T. 465 is contrary to the findings of the second respondent, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT, Chennai Bench is right in hearing the above three appeals when the facts were not the same and passing a common order in those appeals? (ii) Whether the Hon'ble Larger Bench of the Tribunal is right in holding that it is not open to the applicants to file an application for rectification of mistake with reference to final order dated 9-2-2001 at any time within 4 years after the amendment of the provisions of Section 35C(2) of the Central Excise Act, 1944? 10.Heard Mr. K.R. Natarajan, learned Counsel appearing for the appellant arguing for admission. 11.Mr. K.R. Natarajan, learned counsel appearing for the appellant after taking us through the order of the second respondent dated 9-2-2001 and the order of the first respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing heard. ********" In the above section, the period of six months was substituted with effect from 11-5-2002 by Section 140 of the Finance Act, 2002. 13.1Concededly, the second respondent passed the final order on 9-2-2001 and the appellant filed the rectification petition on 19-8-2003. But the amendment of Section 35C(2) was implemented with effect from 11-5-2002. Hence, the rectification petition filed was well beyond the time of six months. 13.2We are also of the considered opinion that the first respondent rightly followed the Supreme Court decision reported in 2002 (142) E.L.T. 5 [Osram Surya (P) Ltd. v. CCE, Indore], wherein the Supreme Court held as follows : "..... we think that by introducing the limitation in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rule 57G, the credit in the account of a manufacturer was not taken away but only the manner and the time within which the said credit was to be taken or utilized alone was stipulated. It is to be noted at this juncture that the substantive right has not been taken away by the introduction of the proviso to the rule in question, but a procedural restriction was introduced which, in our (Emphasisopinion, is permissible in law." supplied) 14.1In the decision cited by the learned counsel for the appellant in Garikapati v. Subbiah Choudhry (AIR 1957 SC 540) it has been held that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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