2015 (10) TMI 124 - AT - Central Excise

Duty demand u/s 11A - demand of duty by fixing annual capacity of production under Rule 96ZQ - whether the proceedings against the appellant can be continued under Rule 96 ZQ of the erstwhile Rules after 1.3.2001 or not has been dealt with by this Tribunal in Alwar Processors Pvt. Ltd. (2014 (12) TMI 156 - CESTAT NEW DELHI) - Held that - show cause notices were issued for the period 1998-99 which is prior to 1.3.2001 and same has attained finality vide order of the adjudicating authority on 31.10.11 therefore, following the decision of Alwar Processors (supra), I hold that proceedings against the appellant are not sustainable in the impugned orders. In these terms, impugned orders are set aside. - Decided in favour of assessee.

Summary

Issues:
Proceedings under Rule 96ZQ post-omission validity.

Analysis:
The appellants challenged an order confirming duty, interest, and penalties under the Central Excise Act, 1944. The case involved eight show cause notices issued between 1998-1999 for demanding duty based on the annual capacity of production under Rule 96ZQ of the erstwhile Central Excise Rules. The finalization of the annual capacity of production faced several adjudications and appeals, leading to the current appeal. The main contention raised was the omission of Rule 96ZQ from the statute book without a saving clause effective from 1.3.2001, making the proceedings initiated prior to this date unsustainable. The appellant relied on the Tribunal's decision in Alwar Processors Pvt. Ltd. to support this argument.

The issue of post-omission proceedings under Rule 96ZQ was extensively discussed. The Tribunal referred to the case of Alwar Processors Pvt. Ltd., where the High Court held that proceedings initiated before the omission of Rule 96ZQ without a saving clause would automatically lapse after the omission date. The High Court relied on previous judgments to conclude that no proceedings could continue under the omitted rule post-omission without a saving clause. In this context, the Tribunal found that the show cause notices in the current case were issued before the omission of Rule 96ZQ, and the final order was passed after the omission date, rendering the proceedings unsustainable. The Tribunal dismissed the Revenue's appeal based on the precedent set by the High Court's decision.

In conclusion, the Tribunal set aside the impugned orders, holding that the proceedings against the appellant were not sustainable post-omission of Rule 96ZQ without a saving clause. The appeals were allowed with consequential relief, if any.