9911796707
TMI Blog2014 (12) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandigarh reported in [2006 (10) TMI 17 - HIGH COURT OF PUNJAB & HARYANA (CHANDIGARH)] and expressed its disagreement. In view of the above judgment of the Hon’ble Gujarat High Court, which is based on the judgment of the Apex Court in the case of Rayala Corporation Ltd. (1969 (7) TMI 109 - SUPREME COURT OF INDIA) and Kolhapur Cane Sugar Works Ltd. (2000 (2) TMI 823 - Supreme Court of India), after omission of Rule 96ZQ w.e.f. 1-3-2001 and omission of Section 3A of the Act without saving clause w.e.f. 11-5-2007, the proceedings initiated prior to omission which had not been concluded as on 11-5-2001 would lapse. In this case, though, initially the show cause notice issued prior to 1-3-2001 had been adjudicated by the Asstt. Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the aid of Hot Air Stenter. In terms of Para 6 of this notification, the same was not applicable to a composite mill i.e. a manufacturer or processor engaged in processing of fabrics with the aid of power along with spinning of yarn from fibres and weaving or knitting or crocheting of fabrics within the same factory and includes a multi-locational composite mill, i.e., a public limited company which is engaged in the processing of fabrics with the aid of power along with the spinning of yarn from fibres and weaving or knitting or crocheting of fabrics in one or more factories owned by the same public limited company. The department was of the view that the respondent are independent processors, as their production of grey fabrics from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in respect of the period from 28-2-99 onwards, the matter was remanded to the Asstt. Commissioner for de novo adjudication. In de novo adjudication, the Asstt. Commissioner vide order-in-original No. 20/2004, dated 10-2-2004 confirmed duty demand of ₹ 45,55,061/- for the period from 28-2-1999 to 5-11-1999 and also imposed penalty on the respondent under Rule 96ZQ(5)(ii). On appeal being filed to the Commissioner (Appeals) against this order, the Commissioner (Appeals) vide order-in-appeal dated 16-5-2005 allowed the appeal on the ground that M/s. Anubhav Textile is engaged in the activity of weaving of fabric and therefore respondent are not covered under the definition of independent processors , and are not covered under the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Q was in operation, would survive. She, therefore, pleaded that the impugned order setting aside the duty demand and penalty is not correct. 4. Shri Bipin Garg, Advocate, ld. Counsel for the respondent, pleaded that in view of omission of Rule 96ZQ of the erstwhile Central Excise Rules, 1944 w.e.f. 1-3-2001 by notification no. 6/2001-C.E. without saving clause and omission of Section 3A of the Central Excise Act, 1944 w.e.f. 11-5-2001 without saving clause, neither any proceedings initiated for recovery of duty or imposition of penalty for the period prior to 1-3-2001 would survive nor any proceedings for recovery of duty or imposition of penalty can be initiated, that in this regard, he relies upon the judgment of the Hon ble Gujarat Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not survive, Section 3A of the Central Excise Act and Rule 96ZQ of the Central Excise Rules had been omitted without any saving clause. He, therefore, pleaded that there is no infirmity in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. Though the show cause notices for duty demand of ₹ 45,55,061/- had been issued during the period prior to omission of Rule 96ZQ i.e. prior to 1-3-2001 and these show cause notices had initially been adjudicated during the period prior to 1-3-2001, on appeal being filed to the Commissioner (Appeals), vide appellate order dated 28-3-200l of the Commissioner (Appeals), the Asstt. Commissioner s order was set aside and the matter was rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said position would prevail even after the omission of Section 3A of the Act? 7. The Hon ble High Court relying upon the judgments in the case of Rayala Corporation Pvt. Ltd. reported in (1969) 2 SCC 412 and subsequent judgment of the Apex Court in the case of Kolhapur Cane Sugar Works Ltd. reported in 2000 (119) E.L.T. 257 (S.C.) concluded that no proceedings could have been initiated under the omitted Rule 96ZQ after omission of Section 3A w.e.f. 11-5-2001 in absence of any saving clause. The Court further held that all proceedings which were pending as on 11-5-2001, even if initiated prior to omission of Rule 96ZQ would thereafter automatically lapse and no order could be passed if they were not concluded at the time of omission of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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