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TMI Blog2005 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... nds is also filed. Revenue has filed cross-objection in Appeal No. E/3461/03 on demands made. Appeal E/252/05 is against the capacity determination. 2.1After hearing both sides and considering the submission it is found - (a) Non-challenge to letter dt. 3-11-99 is not fatal to Appeal No. E/3461/03 a plea taken by the appellant has force. Such a letter is not an appealable order is well settled; in fact, it has been held by this Tribunal that appeals against such letters are not maintainable, and when filed they are being held so with directions to obtain an appealable speaking order and thereafter pursue, an appeal, if required. What is appealable to the Tribunal is an order passed by Commissioner "as an adjudicating authority" as per Section 35B(1)(a). The appellants were repeatedly requesting the Commissioner with representation as regards the capacity. Commissioner should have heard them and thereafter issued an appealable order. We would therefore grant the condonation of delay in this case. Application is allowed. (b)The additional material is in nature of legal points. Application made therefore is allowed. (c)The determination of "annual capacity" under the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd v. Asst. CIT-2002 (7) SCC 1. (v)It is true that Section 6 of the General Clauses Act, 1897 applies to Central Acts only. The portion of the judgment of the Supreme Court in Rayala Corporation holding that Section 6 does not apply to Rules etc., is really not relevant for the purpose of the present case. Only the portion of the judgment of the Supreme Court in Rayala Corporation which states that Section 6 does not apply to "omission" is rightly relied upon by the appellants in the present case to assist the plea. (vi)Section 38A of the Central Excise Act, 1944 is also not applicable in this case, since it does not deal with "section". It deals only with "rules", "notification" or "order". (vii)Hence in absence of any saving clause in Section 121 or any other Section of the Finance Act, 2001 or in the Central Excise Act, 1944, the pending proceedings cannot be continued. All show cause notices issued under Section 3A which are pending for assessment after 11-5-2001 the date of omission could not be therefore be proceeded with much less adjudicated. Therefore the Order-in-Original needs to be set aside in its entirety. (viii) The substantive mother provision for Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mother provision. The position would be no better where the subordinate legislation is omitted prior to the mother provision with a saving clause Rule 96ZO therefore will not survive beyond 11-5-2001, the date of omission by Section 3A. (x) Hence the present proceedings cannot survive and hence the impugned Order-in-Original with all consequent liabilities is liable to be set aside. (e)The plea on interest provision on a taxing statute to be a substantive provision, is a plea to be upheld in view of the Constitutional Bench of Supreme Court decision in case of V.V.S. Sugars v. Govt. of A.P.1999 (4) SCC 192 holding as - "6.....This court in India Carbon Ltd. v. State of Assam has held after analysing the Constitution Bench judgment in J.K. Synthetics Ltd. v. CTD that interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf...." and after perusal of Section 37(1) of 06, Central Excise Act, 1944, which is only a general rule making power conferred cannot be read and relied to upon to uphold the delegated 'interest clause in rule 96ZO(3)' as pleaded by ld. DR. The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaffar Kasam v. CST, Orissa - 1974 (33) STC 98 (SC). In that case, under Rule 16(2) of the Central Sales Tax (Orissa) Rules, penalty was imposed for non-payment of tax demanded. It was contended by the petitioner that the State Government of Orissa had no authority to make a rule providing for imposition of penalty because there was no provision in the Central Sales Tax Act, 1956 authorising such a rule to be made. Revenue relied upon Section 13(3) of the Central Sales Tax Act, 1956 which conferred power on the State Government to make rules, not inconsistent with the provisions of this Act and the rules made under sub-section (1), to carry out the purposes of the Central Sales Tax Act, 1956. The High Court rejected the Revenue's contention and held that "unless the statute expressly authorizes the Rules to create a penal liability, the rulemaking authority would have no jurisdiction to create a penal liability". The High Court relied upon following judgments for reaching to above conclusion : (a)Guldas Narasappa Thimmiah Oil Mills v. CCE - 1970 (25) STC 489 (Mys.) (b)Shri Mohan Lal Chokany v. CTO - 1971 (28) STC 367 (Cal.) (c)Hurdatroy Jute Mills v. Superintendent of Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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