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TMI Blog2018 (5) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... re chargeable to duty in terms of Section 3 of the Central Excise Act, 1944 read with Notification No. 30/97-C.E. (N.T.), dated 1-8-1997. The appellant by communication dated 4-8-1997 opted to pay duty in terms of Rule 96ZO(3) of Central Excise Rules, 1944. The Commissioner of Central Excise, Chandigarh-II vide order dated 11-11-1997 initially determined the annual capacity production of the unit as 9600 MT under Rule 3(4) of Induction Furnace Annual Capacity Determination Rules, 1997 (hereinafter to be referred as the Rules of 1997). The appellant vide communication dated 30-6-1999 intimated to the Commissioner of Central Excise regarding erection of a new electric furnace of 4 MT. 3. The appellant started commercial production on new furnace of 4 MT on 1-10-1999. Thereafter, by communication dated 20-9-1999, the appellant intimated regarding commissioning of new furnace of 4 MT in place of 3 MT and further stated that they shall be using one of the old crucible, i.e., 3 MT as stand by. After the commissioning of new 4 MT furnace, the unit started commercial production of non-alloy steel ingots through 4 MT furnace with effect from 1-10-1999 but one of the crucibles already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naces is only for the purposes of claiming abatement from duty and not for the purposes of determining the annual capacity of production. The learned Single Judge by placing reliance on the decision of the Supreme Court in the case of Commissioner of Central Excise and Customs v. Venus Castings (P) Ltd., (2000) 4 SCC 206 = 2000 (117) E.L.T. 273 (S.C.) as well as decision of the Supreme Court in the case of Supreme Steels and General Mills and Others (2001) 9 SCC 645 = 2001 (133) E.L.T. 513 (S.C.) upheld the validity of Section 3A of the Act and Rule, 96ZO(3) of the Rules and accordingly, the writ petition was dismissed. In the aforesaid factual background, this Intra Court Appeal has been filed. 6. Learned senior counsel for the appellant submitted that Section 3A of the Act was incorporated in the Statute Book on 14-5-1997. However, the aforesaid provision was omitted on 11-5-2001 and was again incorporated in the Statute Book by way of amendment with effect from 10-5-2008. It is pointed out that Rule 96ZO was incorporated in the Rules with effect from 25-7-1997. However, the same was omitted with effect from 1-3-2001. It is submitted that show cause notice was issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 38A of the Act. It is further submitted that the plea that after omission of the provisions, the proceeding cannot be initiated, cannot be permitted to be raised in this Intra Court Appeal for the first time as the same was not raised before the learned Single Judge. In support of his submissions, learned counsel for the respondents has referred to the decision of the Supreme Court in the case of Commissioner of Customs, Mumbai v. Toyo Engineering India Ltd. 2006 (7) SCC 592 = 2006 (201) E.L.T. 513 (S.C.). 8. It is submitted that the decision in the case of Rayala Corporation Private Ltd. v. Director of Enforcement, New Delhi, 1970 AIR SC 494 does not apply to the fact situation of the case as in the aforesaid case, there was no saving clause and the order passed by the learned Single Judge is perfectly justified, which does not call for any interference. Learned counsel for the respondents also referred to the judgment rendered by the Supreme Court in the case of Shree Bhagwati Steel Rolling Mills v. Commissioner of Central Excise, Chandigarh, 2007 (207) E.L.T. 58 (P & H) rendered in civil writ petition No. 15029 of 2005, dated 30-10-2006, M/s. Shree Bhagwati Steel Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer of such goods fulfils such conditions as may be prescribed. (4) Where an assessee claims that the actual production of notified goods in factory is lower than the production determined under sub-section(2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee, to produce evidence in support of his claim, determine the actual production and determine the amount of duty payable by the assessee with reference to such actual production at the rates specified in sub-section (3)" 10. By Finance Act, 2001, dated 11-5-2001, provisions of the Act were amended. By Section 121, Section 3A of the Act was omitted and by Section 131, Section 38A of the Act was incorporated in the statutes, which reads : "131. Insertion of new Section 38A. - After Section 38 of the Central Excise Act, the following section shall be inserted and shall be deemed to have been inserted on and from the 28th day of February, 1944, namely :- 38A. Effect of amendment etc., of rules, notifications or orders. - Where any rule, notification or order made or issued under this Act or any notification or order issued under such rule, is amended, repealed, superseded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Rayala Corporation Private Ltd. (supra) the previous decision rendered by Constitutional Bench of the Supreme Court in the case of State of Orissa v. MA Tulloch and Co., (1964) 4 SCR 461 was not considered. Accordingly, it was held that omission would be covered under expression 'repeal' as used in Section 6 of the General Clauses Act, The aforesaid position of law is reiterated by the Supreme Court in the case of M/s. Bhagwati Steel Rolling Mills v. Commissioner of Central Excise and Ors. - 2015 (326) E.L.T. 209 (S.C.) rendered in Civil Appeal No. 4280 decided on 24-11-2015. 12. Admittedly, the liability in the instant case pertains to the period from 1-10-1999 to 31-3-2000. Section 3A of the Act was omitted on 11-5-2001. Thus, during the period of liability of the appellant, Section 3A of the Act was in existence. Therefore, in view of the Section 38A(c) of the Act, liability of the appellant, which was acquired during the period for which charging section as well as Rules were in vogue, cannot be wiped out. Therefore, contention of the appellant that liability to pay the excise duty was itself wiped out, cannot be accepted. 13. The annual capacity of ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to seek abatement of the duty from the authorities. It is well-settled legal proposition that the appellant cannot claim negative equality. In case any benefit has been illegally granted to Yumna Alloys, the appellant cannot claim the same benefit on the principle of parity. So far as the decision rendered by the Supreme Court in the case of Shree Bhagwati Steel Rolling Mills (supra) is concerned, in paragraph 42 the Supreme Court has only held that sanctioned load would be relevant factor for taking into account the furnace capacity. In the instant case, there is no dispute with regard to the furnace capacity of the appellant. Therefore, we do not find any ground to interfere with the order passed by the Commissioner of Central Excise as well as the Tribunal. 15. The submissions made on behalf of learned senior counsel for the appellant that after omission of the Section 3A of the Act, proceeding against the appellant cannot be initiated, does not deserves acceptance in view of Section 38A(c) of the Act. Similarly, contention that decision rendered in the case of Fibre Board (P) Ltd. (supra) as well as Shree Bhagwati Steel Rolling Mills do not apply to the fact si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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