TMI Blog2008 (4) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... by applying Rule 4 of the said Rules? Held that:- No hesitation to answer question no. 1, in favour of the respondent and against the Revenue when change of machinery and parameters, leads to reduction of annual capacity, Rule 5 would not apply, meaning thereby, that Rule 4 of the aforesaid Rules only shall have application to the facts of the case. We have to decide the question no. 2 also in favour of the respondent and against the appellant-revenue. Once the power vested with the Central Government under Section 3A of the Central Excise Act 1944 which enures it to frame Rules has been taken away, by omission of the said Section, it will have no competence or jurisdiction or power to frame Rules. - 1 of 2003 - - - Dated:- 3-4-2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-heading No. 7214.90, 7216.10 and 7204.90 of Schedule to Central Excise Tariff Act, 1985. It had applied for determination of the annual capacity of production under Section 3A of the Central Excise Act, 1944 and the provisions of HRRSMACD Rules, 1997, by its letter dated 12-8-1977 and opted to pay duty as per Rule 96ZP(3) of the Central Excise Rules, 1944. 4. Earlier, the annual capacity production of the respondent was provisionally fixed with regard to its 16" mill at 28175.3906 metric tonnes. Subsequently, on account of installation of new machinery in the 16" mill and change of parameters, the annual capacity production of the respondent was likely to be reduced. Therefore, it applied to the Commissioner to consider this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the matter was carried to the High Court by the revenue. The High Court observed that since there is no judgement of the High Court on interpretation of Rules 4 and 5 of the said HRRSMACD Rules, 1997, it directed the Tribunal to refer the aforesaid two questions to be answered by this Court. This is how the aforesaid two questions have been referred to this Court for being answered by us. 6. As regards question no. 1 is concerned, the same stands answered by order of CEGAT Northern Bench, New Delhi in Awadh Alloys (P) Limited v. Commissioner of Central Excise, Meerut. Similar issue again came up for consideration before Larger Bench of CEGAT at New Delhi, in the matter of Sawanmal Shibumal Steel Rolling Mills v. C.C.E., Chandigarh-I rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ughout that on account of change in parameters the annual production capacity, has been reduced. 7. Learned Counsel for the appellant was not able to inform us whether any further appeals were carried to the High Court against the orders passed by CEGAT in the matter of Awadh Alloys (P) Limited supra and Sawanrnal Shibumal Steel Rolling Mills supra or not. In other words, according to us if the same had not been challenged in the High Court, the same have attained finality. 8. For the said purpose, learned Counsel for the respondent has placed reliance on a judgement of the Supreme Court reported in 2006 (202) E.L.T. 389 (S.C.). Boving Fouress Limited v. Commissioner of Central Excise, Chennai. Para 11 of the said judgement of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assessees in a quandary." In view of the aforesaid legal position, we have no doubt in our mind that since the revenue had failed to challenge the aforesaid two orders passed by CEGAT touching the same issue as in projected herein, it cannot be permitted to take a different stand. This is what has been held by the Supreme Court in the matter of Boving Fouress Limited. In view of this, for this particular case only, we hold question no. 1 has to be answered in favour of the assessee/respondent and against the Revenue. We accordingly do so. 9. It has thereafter been cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in para 15 which reads as thus : "15. Reference was nest to a decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Hiralal Sutwala, AIR 1959 Madh Pra 93, but, there again, the accused was sought to be prosecuted for an offence punishable under an Act on the repeal of which Section 6 of the General Clauses Act had been made applicable. In the case before us Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132A of the D. L Rs. for the two obvious reasons that Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule. If Section 6 of the General Clauses Act had been applied, no doubt this complaint against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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