9911796707
TMI Blog2006 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal by Order No. 249 to 299 dated 27-2-2001 [2001 (135) E.L.T. 1337 (Tri. - Bang.)] dismissed the appeal, as not maintainable against Order-in-Appeal No. 93 94/C.E., dated 23-8-2000 passed by the Commissioner (Appeals), Cochin. By these order, an amount of Rs. 3,98,211/- had got confirmed. The appellants pray for refund of the pre-deposit of Rs. 50,000/-. The Original Authority rejected the refund claim on the ground that amounts have been appropriated against the outstanding amounts in terms of Order-in-Original No. 66/98, 114/98 115/98 passed by the Deputy Commissioner of Central Excise, Trivandrum. This was upheld by Commissioner (Appeals) and the same had reached finality. 2.The appellants had not challenged the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant as non-est. 08.On receipt of the order, the appellant sought a refund of the pre-deposit of Rs. 50,000/-, they deposited as per Tribunal's order. Aggrieved by the rejection of the refund claim by the Deputy Commissioner, Central Excise Division, Thiruvananthapuram, they filed an appeal before the Commissioner (Appeals), Thiruvananthapuram and got a favorable order. 09.Based on the appellate Commissioner's Order, the lower authority sanctioned the refund of Rs. 50,000/- deposited as pre-deposit and appropriated the same towards arrears pending realization from the appellant under Section 11 of Central Excise Act, 1944. The present appeal is directed against this appropriation. 10.The important issue that is to be decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had never been enacted. The effect is to destroy all inchoate rights and all causes of action that may have arisen tinder the repealed statute. [Keshavan v. State of Bombay, AIR 1951 (SC) 128 PP 131]. Confusion resulting from all these consequences gave rise to the practice of inserting saving clause in repealing statutes, and later on to obviate the necessity of inserting a saving clause in each and every repealing statute, a general provision as made in Section 6 of Central General Clauses Act and it applies to all types of repeals. However, this Section is not applicable to Rules, since the Rule made under an Act is not a Central Act or Regulation. Hence, when a rule is repealed by another rule, Section 6 of General Clauses Act will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA). This section which was to have effect only during the period of emergency enabled detention in violation of clauses (4) and (5) of Article 22. Detention orders passed under Section 12A of COFEPOSA were withdrawn after the Emergency when the section itself expired. But such orders were made the foundation for taking action under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). In proceedings to challenge the notices under SAFEMA it was contended that the detention orders under Section 12A of COFEPOSA were void being violative of fundamental right under Article 22 and could not be relied upon for SAFEIWA. This contention was ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a doctrine of constitutional law nor one statutorily recognized. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. However, in view of different decisions in this regard the claim of the appellant that the order of the Deputy Commissioner merged the appellate order can be accepted; but it does not make the appropriation, quoting the original order a nullity, in as much as the appellate authority had only confirmed the decision of the lower authority. 17.Further objection raised was about non-adherence of principles of natural justice. Section 11 of Central Excise Act, 1944 empowers competent authority to recover any sums due to Government and he may deduct the amount from any money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) in his order had directed for refund amount but the Original Authority again rejected it on the ground of appropriation of amounts against the outstanding dues under Section 11 of the Central Excise Act. 4.The learned JDR submits that the order passed by the Commissioner (A) No. 1/2003 dated 10-3-2003 was without considering the provisions of Section 11 of the Central Excise Act, which provided for adjustments of the amounts which are with the Government with the dues of the assessee against the Order-in-Original No. 66/98, 114/98 and 115/98 passed by the Dy. Commissioner. The Commissioner (A) had confirmed these amounts in Order-in-Appeal No. 24/2003-CE dated 29-10-2003 and this had not been set aside. Therefore, the dues to the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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