TMI Blog2003 (1) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... al, the Commissioner of Central Excise, Mumbai-I directed the lower authority to file an appeal with the Commissioner (A), who vide the impugned Order-in-Appeal rejected the appeal. 3. Against this order of the Commissioner (Appeals), the present Revision Application is filed on the following grounds : (i) The Section 11AB(1) of Central Excise Act, 1944 reads as "Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reasons of fraud, collusion or any wilful-statement or suppression of facts, or contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of duty, the person liable to pay duty as determined under sub-section ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11AB and the provision was applicable at the time of issuance of show cause notice. (iv) The Larger Bench of the Tribunal, in the case of Atma Steels Pvt. Ltd. and Other v. Collector of C.Ex., Chandigarh - 1984 (17) E.L.T. 331, has held that recourse can be had to the provisions as prevailing at the time of initiation of proceedings and the period available would be the one as permissible under the provisions existing at the time of issuance of show cause notice. (v) It was held, in the case of Collector of C.Ex. v. India Linoleums Ltd. - 1993 (67) E.L.T. 678 that it is only the amended Rule that will be relevant and limitation as in force on the date of issue of Show Cause Notice is applicable and not the one in force during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot chargeable in this case. In this regards he has referred the Apex Court decision in the matter of Elgi Equipments Ltd. reported in 2001 (128) E.L.T. 52 (S.C.), wherein it is held that "Penalty - Mandatory penalty - Section 11AC of CEA, 1944 prospective in operation - Illegality committed prior to insertion of said Section in the Act can not be subject matter of penalty under the said provision". (d) The contention of the Department is sought to be supported by the decision of Tribunal in the case of Atma Steels Pvt. Ltd. and Others v. C.C.E., Chandigarh, reported in 1984 (17) E.L.T. 331. The respondent submit that the case law referred by the Department is in relation to the provisions already in force and amended afterwards, while in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch duty. (2) For the removal of doubts, it is hereby declared that the provisions of sub-section (1) shall not apply to cases where the duty became payable before the date on which the Finance (No. 2) Bill, 1996 received the assent of the President. 7. Government observes that the present issue, had been settled by the various judgments of Tribunal and Courts. 8. In the case of Unigress Infotech Pvt. Ltd. v. Commissioner of Central Excise, Chennai [reported in 2000 (124) E.L.T. 1076 (Tribunal)], it was held that Section 11AB of the Central Excise Act, 1944 which came into force on 28-9-96 is not applicable retrospectively. 9. In the case of Commissioner of Central Excise, Mangalore v. Supra Foundry Services (P) Ltd. [reported in 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the CEGAT was dismissed by the CEGAT on 28-5-1998 [reported in 1998 (103) E.L.T. 128 (Tribunal)]. The Reference Application before the Madras High Court (RCP No. 1/99) against the High Court order was dismissed by the Apex Court on 27-1-2000. The Dept's SLP (CC 7698/2000) against the High Court order was dismissed by the Apex Court on 27-11-2000. The matter has been examined in the Board. It is seen that Section 11AB(2), when it was introduced on 28-9-96, inter alia, stated that the provisions of sec. 11AB(1) — i.e. for charging interest—would not apply to cases where duty became payable before the Finance Bill, 1996, received the assent of the President (which was on 28-9-96). A view was taken by the Department in its Circular dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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