2019 (4) TMI 240 - HC - Central Excise

Interpretation of statute - substitution of old rules with new CENVAT Rules 2002 - Whether the demand issued under erstwhile Rule 57(l)(ii) is legally valid after those Rules were substituted with new CENVAT Rules 2002 and whether the proceedings could continue under Section 38A of Central Excise Act, 1944 in view of Sections 131 and 132 of the Finance Act, 2001 which have introduced saving and validating provisions? - Held that - Omission would be included in the meaning of repeal. Section 38A of the Act (inserted in 2001 with retrospective effect from 1944) will make the notice dated 17th January, 2000 valid even post 1st April, 2000. This is in view of Section 38A (c) of the Act which states that any amendment, repeal, supersession or rescinding shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule so amended, repealed, superseded or rescinded. This is further qualified by providing that any investigation, legal proceedings may be continued, as if the Rule had not been amended, rescinded, repealed or superseded. In fact, the above provision is an amalgamation of Section 6 6A of the General Clauses Act, 1897 which applies to Acts, while Section 38A of the Act is specifically in relation to Rules under the Act - the view of the CESTAT cannot be upheld. Whether on the facts and in the circumstances of the case the observation of the CESTAT that the principles of natural justice were violated on the grounds mentioned in para 5(e) (CESTAT order page 13) when it is on records that the Respondents herein themselves were responsible for not availing the opportunity offered from time to time of inspection of all documents? - Held that - his submission cannot be accepted as the entire basis of the Revenue's case against the Respondents is circumstantial to conclude that superior grade steel was diverted elsewhere after taking MODVAT Credit thereon and substituted with a lower grade steel to manufacture said goods. The correctness of these statements made by the person can only be tested, if the same is processed through cross examination of the party affected by it. In the absence of cross examination, the order suffers from breach of natural justice. So also, non-supply of documents relied upon by the Revenue would make the order bad, being in breach of natural justice - the finding of the CESTAT that there has been a breach of principles of natural justice in the order passed by the Commissioner of Central Excise is upheld - decided in favor of the Respondent-Assessee and against the Appellant-Revenue. Whether the CESTAT was right in law in setting aside penalty of 85,00,000/imposed on Shri C.I. Vaghani, Director of M/s. Milton Polyplas (I) Pvt. Ltd. and Managing Director of M/s. Milton Plastics Ltd. and ₹ 45,00,000/on Shri Satish Kulkarni, Chief of Operation of Milton Polyplas (I) Pvt. Ltd., under Rule 209A of Central Excise Rules 1944? - Held that - We are not examining this issue as the entire show cause notice has now been restored to the Commissioner of Central Excise for fresh disposal after following the principles of natural justice - effectively this issue is also remanded for reconsideration Appeal disposed off.

Summary

Issues Involved:
1. Validity of demand under erstwhile Rule 57(l)(ii) post substitution with CENVAT Rules 2002.
2. Alleged violation of principles of natural justice by CESTAT.
3. Legality of CESTAT's decision to set aside recovery of irregular MODVAT credit and penalties.
4. Rejection of evidence and statements collected under Section 14 of the Central Excise Act, 1944.
5. Ignoring the ratio of law laid down by the Apex Court in the case of Collector of Customs, Madras & Ors. v/s. D. Bhoormull.
6. Setting aside penalties imposed on the Director and Chief of Operations under Rule 209A of Central Excise Rules 1944.

Detailed Analysis:

Re. Question (a):
The issue pertains to whether the demand issued under erstwhile Rule 57(l)(ii) remains valid after the substitution of these rules with the new CENVAT Rules 2002. The show cause notice dated 17th January 2000 demanded ?1.67 Crores for MODVAT Credit fraudulently availed from 1995 to 1999. The CESTAT held that the notice was not saved by Section 38A of the Act, as the substitution of rules was not covered by the terms "amended, repealed, superseded or rescinded". However, the Supreme Court's decisions in Fibre Boards Pvt. Ltd. v/s. CIT and Shree Bhagawati Steel Rolling Mills v/s. CCE clarified that omission/substitution falls within the meaning of repeal, making the notice valid post 1st April 2000. Thus, the question was answered in favor of the Revenue.

Re. Question (b):
The CESTAT found a breach of natural justice as the cross-examination of witnesses and inspection of documents were not provided. The Revenue argued that statements given under Section 14 of the Act do not require cross-examination. However, the court held that the correctness of such statements can only be tested through cross-examination, and non-supply of documents vitiates the order. Consequently, the CESTAT's finding of a breach of natural justice was upheld, and the notice was restored to the Commissioner for fresh adjudication.

Re. Questions (c), (d), and (e):
These questions were deemed academic due to the remand for fresh adjudication following the principles of natural justice. Therefore, they were not answered at this stage.

Re. Question (f):
The CESTAT deleted the penalties imposed on the Director and Chief Operations Officer under Rule 209A. The court did not examine this issue in detail as the entire show cause notice was remanded for fresh disposal. The Commissioner of Central Excise will reconsider this issue during the fresh adjudication, taking into account relevant decisions cited by the parties.

Conclusion:
The substantial questions of law were answered as follows:
- Question (a): In favor of the Revenue.
- Question (b): In favor of the Respondent.
- Questions (c), (d), and (e): Not answered due to being academic.
- Question (f): Subject to fresh adjudication.

The CESTAT's order was set aside, and the show cause notice dated 17th January 2000 was restored to the Commissioner of Central Excise for fresh disposal in accordance with law, following the principles of natural justice. The appeal was disposed of accordingly.