Custom, Excise & Service Tax Tribunal
M/S. Arbuda Alloys Pvt. Limited vs Commissioner Of Central Excise & S.T., ... on 9 June, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/140/2006 (Arising out of OIA-103/2006-AHD-III-CE/DK/COMR-A- dated 17.07.2006, passed by Commissioner (Appeals) Central Excise, Service Tax & Customs, Ahmedabad) M/s. Arbuda Alloys Pvt. Limited : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Ahmedabad : Respondent (s)
Represented by :
For Appellant (s) : Shri Devan Parikh, Senior Advocate and Shri Nirav Shah, Advocate For Respondent (s) : Shri Alok Srivastava, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical) Date of Hearing / Decision : 09.06.2015 ORDER No. A/10782 / 2015 Dated 09.06.2015 Per : Mr. P.K. Das;
The relevant facts of the case, in brief, are that the appellants were engaged in the manufacture of Re-rolled products of non-alloy steels classifiable under Chapter 72 of the Schedule to Central Excise Tariff Act, 1985. From 01.09.1997, they were working under Section 3A of the Central Excise Act, 1944 and discharging duty under Rule 96ZP(3) of the erstwhile Central Excise Rule 1944.
2. Four show cause notices were issued during the period from 1998 to 2000 proposing demand of duty under Rule 96ZP of the said Rules 1944 alongwith interest and to impose penalty. By order dated 24.02.2001, the adjudicating authority confirmed the demand of duty alongwith interest and also imposed penalty. By Order dated 17.06.2005, the Commissioner (Appeals) remanded the matter to the Adjudicating authority for deciding the issue by way of speaking order and after hearing the appellant and taking into consideration the change of D factor and other relevant facts as indicated in the said order. In de-novo proceedings, by adjudication order dated 25.1.2006, the adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty. By the impugned order dated 17.07.2006, the Commissioner (Appeals) rejected the appeal filed by the appellant.
3. After hearing both the sides and on perusal of the records, we find that the main contention of the learned Senior Advocate on behalf of the appellants that impugned orders cannot be sustained on the ground the adjudication proceedings was completed in 2006, long after omission of Section 3A read with Rule 96ZP in 2001, without any saving clause. He submits that the issue is covered by the decision of the Tribunal, in the case of Commissioner of Central Excise, Jaipur vs. Alwar Processors Pvt. Limited 2014 (308) ELT 720 (Tri. Del.). In that case, by order dated 03.7.2000, the Assistant Commissioner confirmed the demand of duty for the period 16.12.1998 to 27.02.1999 and for the period 28.02.1999 to 05.11.1999. On appeal, the Commissioner (Appeals) by order dated 28.03.2001, set-aside the adjudication order and remanded the matter to the Assistant Commissioner for de-novo adjudication. In the said order, the duty demand for the period 16.12.1998 to 27.02.1999 was set-aside and the demand for the period from 28.02.1999 onwards, was remanded to the Assistant Commissioner for de-novo adjudication. In de-novo adjudication, the Assistant Commissioner by order dated 10.02.2004 confirmed the demand of duty for the period 28.02.1999 to 05.11.1999 under Rule 96ZQ(5)(ii) of the erstwhile Rules. By Order (Appeal) dated 16.05.2005, the Commissioner (Appeals) allowed the appeal of the assessee on the ground that assessee is not covered under the Compounded Levy Scheme notified under Section 3A of the Central Excise Act, 1944 read with erstwhile Rule 96ZQ of the Central Excise Rules. Revenue filed appeal before the Tribunal. The Tribunal held as under:-
7. The Honble High Court relying upon the judgments in the case of Rayala Corporation Pvt. Ltd. reported 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 Honble 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 Honble 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 01-3-2001 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 Revenues appeal. The same is dismissed.
4. In the present case, we find that the adjudication order was passed in 2006, long after the omission of Section 3A and the Tribunal following the decision of the Gujarat High Court in the case of Krishna Processors vs. UOI 2012 (280) ELT 186 (Guj.) has taken a view that the said proceedings would not sustain. In view of the decision of the Tribunal in the case of Alwar Processors Pvt. Limited (supra). We set-aside the impugned order. The appeal filed by the appellant is allowed.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das)
Member (Technical) Member (Judicial)
..KL
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