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TMI Blog2024 (10) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... to be governed by statutory provision and the said proceeding was envisaged under Rule, 96 ZO, ZP and ZQ. Once the said Rule was omitted w.e.f. 01.03.2001 thereafter, no provision exist by which the adjudication authority has any power to adjudicate the matter related to the compounded levy scheme in terms of Section 3A of the Central Excise Act, 1944. Therefore, the orders passed by the adjudicating authority are non-est and having no support of any authority of law. On this ground, the entire proceedings of show cause notices and adjudication there of gets vitiated. It is settled that in absence of any saving clause while omitting the provision of Section 3A of Central Excise Act, 1944and Rules, 96 ZO, ZP and ZQ of the Central Excise Rules, 1944 adjudication order passed after 01.03.2001, the adjudication proceeding is not legal and correct, consequently no demand can be confirmed. Since the Orders-in-original, itself are without authority of law, demand confirmed under the said orders-in-original cannot be sustained. Therefore, the impugned orders are not sustainable - Appeal allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C L MAHAR, MEMBER (TECHNICAL) Shri Ankur Upadhya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted without having any saving clause. Hence impugned orders are liable to set aside. The Appellant in support of the above submission placed reliance upon the judgment passed by the Hon ble Gujarat High Court in the case of Krishna Processors Vs Union of India reported in 2012 (280) E.L.T. 186 (Guj.) which was upheld by the Hon ble Supreme Court in the case of Shree Bhagwati Steel Rolling Mills Vs CCE reported in 2015 (326) E.L.T. 209 (S.C.). 2.1 Further the Hon ble Gujarat High Court in the case of Gopal Iron Steel Co. (Gujarat) Ltd. Vs Union of India reported in (2024) 20 Centax 240 (Guj.) upheld the proposition laid down in the judgment of Krishna Processor (Supra).The Appellant placed reliance also upon the following judgments in support of the above submission:- In the case of Arbuda Alloys Pvt. Ltd. Vs CCE, Ahmedabad reported in 2016 (338) E.L.T. 426 (Tri. Ahmd.) In the case of CCE, Jaipur Vs Alwar Processors Pvt. Ltd. reported In 2014 (308) E.L.T. 720 (Tri. Del.) Krishna Processors Vs Union of India reported in 2012 (280) E.L.T. 186 (Guj.) Shree Bhagwati Steel Rolling Mills Vs CCE reported in 2015 (326) E.L.T. 209 (S.C.) Gopal Iron Steel Co. (Gujarat) Ltd. Vs. Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by the jurisdictional High Court of Gujarat in the case of Krishna Processors Vs Union of India reported in 2012 (280) E.L.T 186 (Guj.) which is reproduced below:- 15 . In the background of the facts and contentions noted hereinabove, the court is called upon to decide as to : (i) Whether in view of the omission of Rule 96ZQ of the Rules with effect from 1st March, 2001, the adjudicating authority could thereafter have initiated action for breach thereof by issuance of show cause notice and/or could have continued with the proceedings initiated but not concluded prior thereto? (ii) Whether any obligation or liability incurred under Section 3A of the Act is saved by Section 6 of the General Clauses Act and whether after the omission of Section 3A of the Act with effect from 11th May, 2001 proceedings initiated under the Rules 96ZQ, 96ZP and 96ZO of the Rules would survive? (iii) Whether Section 38A of the Act saves all obligations and liabilities incurred under Rule 96ZQ of the Rules? If yes, whether the said position would prevail even after the omission of Section 3A of the Act? (iv) Whether in view of Section 132 of the Finance Act, 2001 everything done under the old provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-rule (5) of Rule 96ZQ of the Rules. 16.1 On behalf of the revenue, twin contentions have been raised. Firstly, that there is a saving clause while deleting Rule 96ZQ inasmuch as the Notification dated 1st March, 2001 has amended the Central Excise Rules except as respects things done or omitted to be done before such amendment. The other contention is that, even if there is no saving clause in the notification, Section 38A was brought on the statute book with effect from 28th February, 1944 and, therefore, the action could be initiated, continued and concluded even after the omission of Rule 96ZQ as the regular provisions of the Act would continue to apply. In this regard, it may be relevant to notice some facts. Rule 96ZO, 96ZP and 96ZQ came to be omitted by Notification 6/2001-C.E. (N.T.), dated 1st March, 2001. Subsequently, Section 3A of the Act came to be omitted with effect from 11th May, 2001 by Finance Act, 2001. Section 38A, came to be inserted in the Central Excise Act with effect from 28th February, 1944 and reads thus: 38A. Effect of amendments, etc. of rules, notifications or orders . - Where any rule, notification or order made or issued under this Act or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the notification only affords protection to things already done under the rule, so that it cannot permit further application of that rule by instituting a new prosecution in respect of something already done. It was held that consequently after omission of Rule 132-A of the Defence of India Rules, no prosecution could be instituted even in respect of an act which was an offence when that rule was in force. In the facts of the said case, simultaneously with the omission of Rule 132-A of the Defence of India Rules, Section 4(1) of the Act was amended so as to bring the prohibition contained in Rule 132-A(2) under Section 4(1) of the Act. The Supreme Court observed that when Section 4(1) of the Act was amended, the Legislature did not make any provision that an offence previously committed under Rule 132-A of the Defence of India Rules would continue to remain punishable as an offence for contravention of Section 4(1) of the Act, nor was any provision made permitting operation of Rule 132-A itself so as to permit institution of prosecutions in respect of the said offences. On this interpretation, the court held that the complaint made for the offence under Rule 132-A(4) of the Defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1944. A perusal of the notification dated 1st March, 2001 issued by the Central Government omitting Rules 96ZQ, 96ZO and 96ZP shows that the same does not make any provision similar to that contained in Section 6 of the General Clauses Act, nor does the same make any provision that liability under Rule 96ZQ would continue under the regular provisions after its omission. In M/s. Rayala Corporation (supra), the notification afforded protection to things already done under the rule; so also in the present case, the notification affords protection to things already done under the rules. When Section 38A came to be inserted, the Legislature did not make any provision permitting operation of Rule 96ZQ so as to permit initiation of proceedings under the said Rules. In M/s. Rayala Corporation (supra), it was held by the Supreme Court that Section 6 of the General Clauses Act cannot obviously apply on omission of Rule 132-A of the Defence of India Rules for two obvious reasons: (i) Section 6 applies only to repeals and not to omissions and (ii) Section 6 applies when the repeal is of a Central Act or Regulation and not of a rule. In the facts of the present case, Section 6 of the General ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vings applicable. In a case where a particular provision in a statute is omitted, and in its place, another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the Legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. Adverting to the facts of the present case, in view of the language contained in the notification dated 1st March, 2001, the same can only afford protection to action already taken while Rule 96ZQ was in force, but cannot justify initiation of a new proceeding which will not be a thing done or omitted to be done under the rule but a new act of initiating a proceeding after the rule had ceased to exist. In the circumstances, in the present case, upon omission of Rule 96ZQ of the Rules, in view of the language contained in the Notification dated 1st March, 2001, action already taken while the rule was in force would be protected. However, no new proceeding could be initiated after the rule had ceased to exist. 17 . However, the aforesaid observations would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom repeal. The aforesaid view has been reiterated by another Constitution Bench of the Supreme Court in the case of Kolhapur Canesugar Works Ltd. v. Union of India (supra) wherein the court agreed that the earlier view taken in M/s. Rayala Corporation (supra) that Section 6 of the General Clauses Act only applies to repeals and not to omission and applies when the repeal is of a Central Act or regulation and not of the rule. Insofar as Section 3A of the Act is concerned, the second part would not be applicable since the present case relates to omission of a section. However, the first part namely that Section 6 of the General Clauses Act only applies to repeals and not to omissions would be squarely applicable to the facts of the present case. Reliance placed by the Revenue on the decision of the Supreme Court in the case of General Finance Company (supra) is misconceived inasmuch as in the said case the Supreme Court after finding force in the submissions advanced by the learned counsel, observed that it was constrained to follow the two decisions of the Constitution Benches of the Supreme Court in the case of M/s. Rayala Corporation Pvt. Ltd. and Kolhapur Canesugar Works Ltd. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 3A of the Act. 18.1 On a plain reading of Section 38A of the Act, it is manifest that the same operates only in respect of amendment, repeal, supersession or rescinding of any rule, notification or order. In the present case, Rule 96ZQ has not been amended, repealed, superseded or rescinded, but has been omitted. As held by the Supreme Court in the case of M/s. Rayala Corporation (supra), omission and repeal are different things and omission does not amount to repeal. Similarly, considering the dictionary meaning of rescind and amend, the same are not synonymous with the word omit . Under the circumstances, Section 38A of the Act would not save any obligation, liability etc. acquired, accrued or incurred under any rule, order or notification which has been omitted. As a necessary corollary, it follows that Rules 96ZQ, 96ZP and 96ZO of the Rules having been omitted vide the notification dated 1st March, 2001, any liability or obligation acquired, accrued or incurred thereunder would not be saved under Section 38A of the Act. 18.2 If one were to assume that any liability, obligation etc. acquired, accrued or incurred under Rules 96ZQ, 96ZP and 96ZO of the Rules is saved by Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny saving clause and Section 3A was also omitted vide Section 121 of the Finance Act, 2001 on 11th May, 2001 without any saving clause, all proceedings which were pending as on 11th May, 2001 as regards Rules 96ZO, 96ZP and 96ZQ would thereafter automatically lapse, merits acceptance. Consequently, no orders could have been passed against the petitioners under the said provisions if the actions against the petitioners were not concluded at the time of omission of Section 3A of the Act. 19 As regards the fourth question, viz., whether in view of Section 132 of the Finance Act, 2001 everything done under the old provision is saved, on behalf of the Revenue, reliance has been placed upon Section 132 of the Finance Act, 2001 to contend that the same validates all actions taken or anything done or omitted to be done or purported to have been taken or done or omitted to be done under any rule, notification or order made or issued under the Central Excise Act and that all such actions shall be deemed to be and to always have been, for all purposes, as validly and effectively taken or done or omitted to be done as if the amendment made by Section 131 of the Finance Act, 2001 had been in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Rules 96ZQ, 96ZO and 96ZP of the Rules after Section 3A of the Act came to be omitted from the statute book without any saving clause, would be without authority of law and as such any orders passed in respect thereof after the omission of Section 3A of the Act would be non est. As a result of the aforesaid discussion, the orders impugned in the present petitions are required to be quashed and set aside as being without authority of law. 20 . Dealing with the question as regards the vires of Rule 96ZQ(5)(ii) of the Rules which arises only in Special Civil Application No. 1984 of 2002, it may be necessary to refer to the provisions of Rule 96ZQ of the Rules. 20.1 Rule 96ZQ of the Rules insofar as the same is relevant for the present purpose reads thus:- 96ZQ. Procedure to be followed by an independent processor of textile fabrics. - (1) An independent processor of textile fabrics falling under Heading Nos. 52.07, 52.08, 52.09, 54.06, 54.07, 55.11, 55.12, 55.13 or 55.14, or processed textile fabrics of cotton or man-made fibres, falling under Heading Nos. or sub-heading Nos. 58.01, 58.02, 5806.10, 5806.40, 6001.12, 6001.22, 6001.92, 6002.20, 6002.30, 6002.43 or 6002.93, of the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in sub-rule (1), he shall be liable firstly to pay the outstanding amount of duty alongwith interest at the rate of twenty four per cent per annum calculated for the outstanding period on the outstanding amount. Clause (ii) of sub-rule (5) which is impugned in the present case makes provision for imposition of penalty equal to an amount of duty outstanding from such independent processor at the end of such month or Rs. 5 ,000/-, whichever is greater. As noted earlier, the petitioners had paid the first instalment after a delay of four days on 19th July, 2000 and the second instalment after a delay of three days on 3rd October, 2000. However, insofar as the delay of four days in payment of the first instalment is concerned, the petitioners were liable to pay only the interest at the rate of twenty four per cent on the outstanding amount for the period during which the amount was outstanding, whereas in respect of the second instalment, apart from payment of interest at the rate of twenty four per cent on the amount outstanding for the period it was outstanding, the petitioners were also liable to pay penalty of an amount equal to the amount of duty outstanding from them at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other penalty is provided by the Act, be liable to a penalty not exceeding five thousand rupees. Thus, by virtue of sub-section (3) of Section 37, in case no other penalty is provided by the Act, the Central Government is empowered to make provision for imposition of penalty not exceeding five thousand rupees for committing a breach of any rule. Rule 96ZQ has been framed in exercise of powers under Section 37 of the Act. Hence, by virtue of sub-section (3) of Section 37, the Central Government is expressly empowered to provide for a penalty not exceeding five thousand rupees in case of breach of the said rule. However, clause (ii) of sub-rule (5) of Rule 96ZQ of the Rules provides for imposing penalty equal to the amount of duty or rupees five thousand whichever is greater on the amount of duty outstanding from an independent processor at the end of the month. The question that therefore arises for consideration is whether the Central Government has the power to make provision for imposition of penalty greater than five thousand rupees. 20.6 On behalf of the petitioners, it has been contended that penalty is in the nature of a tax and that Article 265 imposes a limitation on the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Article 13 of the Constitution. One of such conditions envisaged by Article 13(2) is that the legislature shall not make any law which takes away or abridges the equality clause in Article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Article 14 of the Constitution, it must be struck down as unconstitutional. For the purpose of these cases, we shall assume that the State Legislature had the necessary competence to enact the law, though the petitioners have seriously challenged such a competence. The guarantee of equal protection of the laws must extend even to taxing statutes. It has not been contended otherwise. It does not mean that every person should be taxed equally. But it does mean that if property of the same character has to be taxed, the taxation must be by the same standard, so that the burden of taxation may fall equally on all persons holding that kind and extent of property. If the taxation, generally speaking, imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject-matter of the legislation their position is substantially the same. (7) The classification must not be arbitrary and must be rational, that is to say, it must not only be based on some qualities or characteristics which are found to be in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes those that are grouped together from others and (2) that the differentia must have a rational relation to the object sought to be achieved by the Act. (8) The differentia which is the basis of the classification and the object of the Act are different things and what is necessary is that there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring penalties or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the penalties sought to be conferred or the liabilities proposed to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 2000 in the TR-6 challan. However, in view of the mandatory nature of clause (ii) of sub-rule (5) of Rule 96ZQ, the respondents even in such circumstances, were left with no option but to impose penalty equal to the amount of duty. Thus, it is apparent that clause (ii) of sub-rule (5) of Rule 96ZQ operates very harshly on an assessee despite there being no fault on his part in making deposit of the amount within the prescribed time limit. 20.12 At this juncture, it may be pertinent to refer to Section 11AC of the Act which provides for levy of penalty for short-levy or non-levy of duty in case where such short-levy or non-levy is by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of the provisions of the Act or rules made thereunder with an intent to evade payment of duty. The said section provides that in such case, the person shall be liable to pay penalty equal to the amount of duty as determined under sub-section (2) of Section 11A of the Act. However, despite the fact that Section 11AC operates where there is fraud, collusion or wilful mis-statement or suppression of facts or contravention with the intention of evading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of other excisable goods. Moreover, considering the nature of the penalty prescribed even for one day s delay, it is apparent that the said provision would amount to imposition of an unreasonable restriction on the petitioners right to conduct business thereby rendering the said provision as violative of Article 19(1)(g) of the Constitution. 20.14 In the light of the above discussion, this court is of the view that clause (ii) of sub-rule (5) of Rule 96ZQ of the Rules is ultra vires Articles 14 and 19(1)(g) of the Constitution of India as well as Section 37 of the Central Excise Act and is beyond the authority of the rule making power of the Central Government and as such, is required to be struck down. 20.15 The above view taken by this court finds support in the decision of the Punjab Haryana High Court in the case of Bansal Alloys and Metals Pvt. Ltd. v. Union of India (supra) wherein the court has held that the provision for minimum mandatory penalty equal to the amount of duty even for slightest bona fide delay without any element of discretion is beyond the purpose of legislation. The object of the rule is to safeguard the revenue against loss, if any. The penalty has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of the manufacturers that the part of sub-rule (3) which provides that in case excise duty is paid according to the said sub-rule, in that event, the manufacturer shall not avail the benefit available under sub-section (4) of Section 3A of the Central Excise Act, 1944 is bad. In relation to the said contention, the Supreme Court placed reliance upon its earlier decision in the case of Commissioner of Central Excise Customs v. M/s. Venus Casting (P) Ltd. (supra) wherein it has been held that two procedures namely one as provided under sub-section (4) of Section 3A of the Central Excise Act and the other as provided under sub-rule (3) of Rule 96ZO of the Central Excise Rules are alternative procedures and the assessee has to opt for one. Once having done so, he cannot claim the benefit of the other. 21.1 Another contention raised on behalf of the Revenue was that the petitioners having not raised the contention with regard to lack of jurisdiction before the appellate authority, they cannot be permitted to challenge the show-cause notice at a belated stage. It was contended that the petitioners after participating in the adjudication proceedings and challenging the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on which the decree is made goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree and cannot be cured by consent or waiver of the party. In the case of Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Others, 1993 (4) SCC 10, the Supreme Court held that generally, a point not raised before the Tribunal or administrative authorities may not be allowed to be raised for the first time in the writ proceeding, more so when the interference in the writ jurisdiction which is equitable and discretionary is not a must as indicated by the Supreme Court in A.M. Allison v. State of Assam, AIR 1957 SC 227, particularly when the plea sought to be raised for the first time in a writ proceeding requires investigation of facts. But if the plea though not specifically raised before the subordinate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een concluded before the omission came into effect, could be concluded thereafter. The proceedings culminating into the impugned orders having been initiated/concluded after the omission of Rules 96ZQ, 96ZP and 96ZO of the Rules and Section 3A of the Act are, therefore, without any authority of law and as such, cannot be sustained. The impugned orders dated 9th November, 2001/1st January, 2002 (Special Civil Application No. 1984 of 2002), dated 31st December, 2003 (Special Civil Application No. 3637 of 2004) and dated 30th October, 2001 (Special Civil Application No. 6779 of 2003) are hereby quashed and set aside. Rule is made absolute accordingly in each of the petitions with no order as to costs. 23. Registry to keep a copy of this order in each of the petitions. 24. [ Judgment ]. At this stage, Mr. Darshan Parikh, learned senior standing counsel has requested that the judgment be stayed for a period of twelve weeks from today. In the facts and circumstances of the case, the request is declined. The Similar case has been considered by the Hon ble High Court of Gujarat in the case of Gopal Iron Steel Company (Gujarat) Ltd. (supra) wherein the Hon ble Court has passed following ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Processors (Supra) with regard to the issue arising in this petition to decide as to whether the proceedings would have been continued by the respondent authorities after the omission of the Rules 96ZP and Section 3A of the Act or not. This Court in case of Krishna Processors (Supra) after considering the submissions made by both the sides has formulated the following issues: 15. In the background of the facts and contentions noted herein above, the court is called upon to decide as to: (i) Whether in view of the omission of rule 96ZQ of the Rules with effect from 1st March, 2001, the adjudicating authority could thereafter have initiated action for breach thereof by issuance of show cause notice and/or could have continued with the proceedings initiated but not concluded prior thereto? (ii) Whether any obligation or liability incurred under section 3A of the Act is saved by section 6 of the General Clauses Act and whether after the omission of section 3A of the Act with effect from 11th May, 2001 proceedings initiated under the rules 96ZQ, 96ZP and 96ZO of the Rules would survive? (iii) Whether section 38A of the Act saves all obligations and liabilities incurred under rule 96ZQ o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the annual capacity of production on processed textile fabrics under section 3A of the Act read with the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. Rule 96ZQ proceeds to lay down the manner of payment of duty, payment of interest/penalty and such other incidental matters. Section 3A has been omitted by the Finance Act, 2001 with effect from 11th May, 2001 without any saving clause. On behalf of the Revenue, reliance had been placed upon the decision of the Supreme Court in the case of General Finance Company vs. Assistant Commissioner of Income Tax (supra) to contend that omission also amounts to a repeal of an enactment and as such, the provisions of section 6A of the General Clauses Act would be applicable and all proceedings and liabilities incurred under the omitted provisions would be saved. A Constitution Bench of the Supreme Court in the case of M/s. Rayala Corporation (supra) held that section 6 of the General Clauses Act would not apply to the omission of a provision in an Act but only to repeal, omission being different from repeal. The aforesaid view has been reiterated by another Constitution Bench of the Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under rules 96ZQ, 96ZP and 96ZO of the Rules after the omission of section 3A. As noticed earlier, rule 96ZQ of the Rules only lays down the procedure to be followed by the independent processor of textile fabrics, the manner of payment of duty and the consequences of nonpayment of duty within the prescribed period, etc. Likewise, is the case with rules 96ZP and 96ZO of the Rules. Rules 96ZQ, 96ZP and 96ZO are not the charging provisions. The charging provision is section 3A of the Act and rules 96ZQ etc. are merely machinery provisions. Thus, any liability which accrues is under section 3A of the Act. Accordingly, when the charging section itself is deleted without any saving clause, no recovery under the said section can be made by resorting to rule 96ZQ of the Rules. Action, if any, can be taken only under the regular provisions of the Act. 26. Ultimately, in conclusion, it was held as under: 22. For the foregoing reasons, the petitions succeed and are accordingly allowed. Rule 96ZQ (5) (ii) of the Central Excise Rules, 1944 is held to be ultra vires Articles 14, 19(1)(g) and 265 of the Constitution of India. It is further held that after the omission of rules 96ZQ, 96ZP and 96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it omissions made by the legislature. 29. After considering the submissions of both the sides, it was held by the Hon ble Apex Court as under: 13. From this it is clear that when Section 6 speaks of the repeal of any enactment, it refers not merely to the enactment as a whole but also to any provision contained in any Act. Thus, it is clear that if a part of a statute is deleted, Section 6 would nonetheless apply. Secondly, it is clear, as has been stated by referring to a passage in Halsbury s Laws of England in the Fibre Board s judgment, that the expression omission is nothing but a particular form of words evincing an intention to abrogate an enactment or portion thereof. This is made further clear by the Legal Thesaurus (Deluxe Edition) by William C Burton, 1979 Edition. The expression delete is defined by the Thesaurus as follows: Delete: - Blot out, cancel, censor, cross off, cross out, cut, cut out, dele, discard, do away with, drop, edit out, efface, elide, eliminate, eradicate, erase, excise, expel, expunge, extirpate, get rid of, leave out, modify by excisions, obliterate, omit, remove, rub out, rule out, scratch out, strike off, take out, weed wipe out. Likewise the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the impugned order dated 18.11.2010 passed by the Commissioner is hereby quashed and set aside being without jurisdiction as no orders could have been passed against the petitioners under the said provision as the action initiated against the petitioner was not finally concluded at the time of omission/ repeal of the provisions. 31. The petition therefore succeeds and is accordingly allowed. The impugned order dated 18.11.2010 passed by the Commissioner of Central Excise Ahmedabad-II is hereby quashed and set aside on the ground that no proceedings were permissible against the petitioner company for recovery of the compounded levy amount for years 1998-1999 and 1999-2000, because when the impugned order was passed, the provision of Section 3A of the Act read with Rule 96ZP of the Rules and the notification were omitted and repealed in absence of any saving clause with effect from 2001. Rule is made absolute to the aforesaid extent. No order as to costs. This Tribunal also considering the same issue in Arbuda Alloys Pvt. Ltd. (supra) following the Hon ble Gujarat High Court judgment Krishna Processor (supra) taken the same view, the relevant order is reproduced below:- 3 . Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court has also considered the judgment of Punjab Haryana High Court in the case of Shree Bhagwati Steel Rolling Mills v. CCE, Chandigarh reported in 2007 (207) E.L.T. 58 (P H) 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. (supra) and Kolhapur Cane Sugar Works Ltd. (supra), 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, the Commissioner (Appeals) had set aside the orders and had remanded the matter for part of the period of dispute to the Asstt. Commissioner for de novo adjudication and de novo proceedings were concluded in 2004, long after omission of Rule 96ZQ with effect from 1-3-2001 and Section 3A with effect from 11-5-2001 without any serving clause and therefore the same would lapse. In view of this, we do not find any merit in the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Section 3A w.e.f. 11-5-2001. In this judgment, the Hon ble High Court has also considered the judgment of Punjab Haryana High Court in the case of Shree Bhagwati Steel Rolling Mills v. CCE, Chandigarh reported in 2007 (207) E.L.T. 58 (P H) 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. (supra) and Kolhapur Cane Sugar Works Ltd. (supra), 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 omi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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