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TMI Blog2016 (5) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... two aspects of applicability of Section 3-A and the availability of the notification for production of Gutka, the matter can be considered for finalization of excise duty by the Revenue. As, neither there is reference to such contention nor there is discussion by the Tribunal on the aforesaid aspects which are vital aspects for charging of excise duty, we find that it would be just and proper to remand the matter to the Tribunal for appropriate consideration in accordance with law. Therefore, the impugned order passed by the Tribunal is set aside with a further direction that all Appeal shall stand restored to the Tribunal for its consideration in accordance with law and in the light of the observations made by this Court in the present Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 to 19.6.2005. On 2.3.2007, the respondent issued corrigendum to the earlier notice dated 17.12.2005. 6. The respondent considered the matter and on 28.3.2007, the order in original No.5/07 was passed confirming the duty amount of ₹ 2,85,634/- and imposing penalty of ₹ 50,000/- and redemption fine of ₹ 50,000/-upon the appellant. In the meantime, the appellant also submitted reply to the second show-cause notice on 3.5.2007. The appellant also preferred appeal before the Tribunal against order dated 28.3.2007 vide No.5/07. On 7.12.2007, the Tribunal vide final order No.389/07 remanded the matter to the Original Authority on the ground of observance of the principles of natural justice. 7. On 28.9.2007,the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts at (i) (ii) are upheld. (iv) Penalty of ₹ 42 lakhs imposed under Rule 25 of the Central Excise Rules 2002, on TAG is set aside. (b) Appeal No.E/559/08 is disposed of by upholding the confiscation of the goods. The redemption fine of 50,000 is upheld. Penalty of ₹ 50,000/- imposed is also upheld. However, the demand of ₹ 2,85,634/- is set aside for the reasons recorded earlier. (c) Appeal No.E/70/2008 filed by Shri H.S.Nataraj, M.D. of TAG is rejected and the penalty of ₹ 5 lakhs imposed on him is upheld. (d) E/826/08 by M/s Embee Agencies is rejected and the penalty of ₹ 20,000/- imposed on them is upheld. (e) E/825/08 by M/s Whab Stores is rejected and the penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, during subject period, the said provision of Section 3A was not on the statute book during the subject period of 2002-03 to 2004-05. or upto not even for 2005-06 and came to be inserted only on 10.5.2008. 13. It is by now well settled that all taxing statutes are to be strictly interpreted. Further in normal circumstance, when there is conscious omission on the part of the Parliament for charging the excise duty based on the production capacity byvirtue of Section 3-A, it will have the repercussions for such a course to be made available to the assessing authority. Further, even as per Section 3-A, the goods are required to be notified for the purpose of charging excise duty on the basis of production capacity. As such, it is a pure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the second show cause notice of demand of duty is not backed by the reasons supplied in support of said show-cause notice since the said second show-cause notice dated 31.1.2007 vide para 7(a) itself specified in detail in the statement of facts enclosed to the notice whereas, learned counsel appearing for the Revenue submitted that the said contention was also not raised before the Tribunal nor any specific discussion is found from the order of the Tribunal. He submitted that if the said contention is not raised before the Tribunal, appellant-assessee cannot be permitted to raise the said contention in the present appeal which is limited to substantial questions of law. 15. As we notice, it is true that such a contention specifical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the aforesaid observation and discussion, we find that, on the aforesaid two limited aspects, the matter deserves to be remanded to the Tribunal. 18. Hence, the impugned order passed by the Tribunal is set aside with a further direction that all Appeal Nos. 69, 70, 559, 825 and 826/08 shall stand restored to the Tribunal for its consideration in accordance with law and in the light of the observations made by this Court in the present Judgment. It is observed that before the Tribunal, both the sides shall be at the liberty to raise all contentions as may be available in law and the Tribunal, after hearing both sides, shall pass a fresh order as early as possible preferably within a period of six months from the receipt of ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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