Karnataka High Court
Commissioner Of Central Excise Belgaum vs M/S Bellary Steel Rolling Mills on 3 April, 2008
Bench: Deepak Verma, Anand Byrareddy
_ IN THE HIGH COURT OF KARNATAKA AT BANGALORE _ DATED THIS THE 03RD DAY GE P APRIL 2008 a PRESENT | THE HON'BLE MR. JUSTICE DEEPAK V VERMA THE HON'BLE MR. JUSTICE ANAND BYRAREDDY TRE. TRE. No. a1 OF 2003 : _ BETWEEN: | - Commissionet-o of Central Excise, . | 71, Club Road, Belgoum, : - . PETITIONER (By Shri. Aravind Kumar wad Smt.M.Poornima, Advocate) AND: - MIS. Bellary § Stee! Rolling Mills, 3.No0.890, Anantpur Road, Bellary-583 io ... RESPONDENT
coe : (By Shri Rajesh Chander Kumar, Advocate) This TRC is under Section 35H(1) of the Central Excise ~~ Act, 1944 in Appeal No.E/Ref/9/02, E/428/2000 arising out of
- _. Tribunals final order No.856/2000 dated 4.7.2002. This TRC. coming on for hearing this day, DEEPAK VERMA J., delivered the following:- Ww exclude the cases of re-delermination in case of change in parameters by applying Ruie 4 et the a said Rules?" Lom, ce i The full form of HRRSMACD Rules 1997 is Hot Re-rolling -- Steel Mills Annual Capacity Determination Rules, 1997 (heremafler referred to. as HRRSMACD Rules, "1997 for brevily) .
The respon assessee M/s Bellary Steel Rolling Mills | is essentially and basically engaged in mimuficlaring of the re- oo rolle products of iren-and steel, falling under sub-heading No.7214 90, 716, 10 and 7204.90 of Schedule to Central Excise Tasiti Act, 1985. It had applied for determination of the annual capacily of production under Section 3A of the _ a Central Excise Act, 1944 and the provisions of HRRSMACD
-- Rules, 1997, by its letier dated 12.8.1977 and opted to pay duty as per Rule 96ZP(3) of the Central Excise Rules, 1944. | ac ~J "9. From ° perusal of ovr previous Sections we fad. | capacity of production on account of changes in the : -- machinery. In those circumstances the Tribunal heli that _ | Rule 5 had no application te those cases Those decisions - cannot consiitute the basis for the contention that Rute § is wholly inapplicable i irrespective os whether the change in machinery is for reduction i in the capacity, fo retain the Same capacity or augmenting the capacity of { production. When the capacity remains the sane or the capacity is increased » On. accouns of change of machinery, no Mnintendea hardship is visited upon tax payers by the auplication. of Rule s However, when change of machinery leeds to redecton of annual capacity, Rule 5 woud not apply." , : Any view ol this, we have no hesilation to answer question no. I, in favour of ihe respondent and against the Revenue. It has | been. held "calegorically in the said judgement that es when change of machinery and parameters, leads to : : reduetion of annual capacity, Rule 5 would not apply, meaning thereby, that Rule 4 of the aforesaid Rules only shall have application to the facts of the case. -- This we of the suid judgement of ihe Supreme Court which goes to the e root of the matter is reproduced herein below" aos "11. This Court in a catea of decisions has heid sat where the department accepts tise principle laia down by the Tribunal in one 2ase and let it becoise final, then the department is not entitled to raise dhe samme point in other cases. The department canot pick and couse. [See: The decisions. af this Court in. Union of India & Others v. Kaumuaini. Narayan Dalal & Another -- (2001) 10 SCC 231; Coliceior of Conrad _ Excise, Pune v. Tata Engineering & Locomotives Ca. 'Lid, ~ 2003 (158 E.L.T. 130 BC) Birla Corporation Ltd, v. Commissioner of Central Excice - -: 2005 (186) E.LT. 266 &.C); and ; Jayaswaiz. Neco Ltéé v. Commissioner of Central Excise, : © Nagper - 2006.95) ELT. 142 (S.C). It has been held oe in ali these cases that if no appeal is filed against an earlier order or the earlier appeal involving the identical 7 issue wae not pressed by the Revenue, the Revenue is not " enditled to press the other appeals involving the same | question. in Birla Corporation Ltd. (supra), this Court : observed as follows:
"In the instant case the same question arises for consideration and the facts are aimost identical. We cannot permit the Revenue to take a different stand in this TS (1) AIR 1970 Supreme Court 494 in Mis. Rayali Corporation | (P)Limited vs. The Director of Enforcement, New Deli. _ oa (2) 2000(119) E.L.T.257(S.C.} in Kolhapur Canesugar Works a Limited vs. Union of India.
(3) AIR 2002, 'Supreme Court 3126 in Cibaaral Finance Company and another vs. Assistant Consnissisuer of Income | Tax, Punjab. -- s (4) (1995) 4 4 Supreme Court Cases 734 in n Ait India vs. Union of Init and others, | os ; The: judgement of the Supreme Court in the maiter of Rayala Corporation f P)Limiied supra is by a Constitution Bench. The ns Supreme Court has succinetly dealt with the issue of repeal and " omission in para 15 which reads as thus:
"15. Reference was next to a decision of the Madhya Pradesh Iligh Court in State of Madhya Pradesh v. Iliralal Sutwala, AIR 1959 Madh Pra 93, but, there "18 13 again, the accused was sought to be prosecuted for an a : offence punishable under an Act on the repes! of which ; Section 6 of the General Clauses Act had. been made 2 applicable. In the case before us Section 6 of the --_ General Clauses Act cannot. obviously appiy 'oh the : omission of Rule 132A of the D. L Rs. for ihe two obvious reasons that. Section: é only. applies to repeals and not to omissions, aud applizs when the repeal is of a -- Central Act or Regulation. and not of a Rute, If Section 6 of the General Clauses Act had been applied, no doubt this complaint against the two accused for the offence punishable nader R.. 132A of the D. L Rs. could have been instituted even after the repeal of that rule."
11. The afbresaid judgement of the Supreme Court has been -- a followed m all the subsequent judgements mentioned ss hereinabove. Thus, it is not necessary to refer to the subsequent judgements In the light of the aforesaid discussion, we have to decide the question no.2 also in favour of the "respondent and against the appellant -- revenue. Once the ho power vesied with the Central Government under Section 3-A of the Central Excise Aci 1944 which enures it to frame Rules has been taken away, by omission of the said Section, it will Tk