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RAJASTHAN HIGH COURT (JAIPUR BENCH)
K.S. Jhaveri, Vijay Kumar Vyas, JJ.
Commissioner Of Central Excise - Appellant
Versus
Savitri Concast Ltd. - Respondent
Central Excise Appeal Nos. 41-42 of 2008
Decided On : 04-10-2017
CENTRAL EXCISE ACT, 1944 - SECTION 3A - RULE 96ZO, 96ZP, 96ZQ - OMISSION OF SECTION 3A - EFFECT ON PROCEEDINGS - SAVING CLAUSE - GENERAL CLAUSES ACT, 1897 - SECTION 6 - FINANCE ACT, 2001 - SECTION 121, 131 - INTERPRETATION - APPLICABILITY OF INTEREST AND PENALTY PROVISIONS.
Fact of the Case:
The appellant challenged the CESTAT's order allowing the assessee's appeal, which held that the omission of Section 3A of the Central Excise Act, 1944, without a saving clause, would affect proceedings for which a decision had already been taken before the omission.
Finding of the Court:
The court held that the omission of Section 3A was a form of repeal and that the saving provisions of Section 6 of the General Clauses Act, 1897, were applicable to the omission. It also held that Rule 96ZO of the Central Excise Rules, 1944, would survive beyond the date of omission of Section 3A.
Issues: 1. Whether the omission of Section 3A of the Central Excise Act, 1944, without a saving clause, would affect proceedings for which a decision had already been taken before the omission? 2. Whether the saving provisions of Section 6 of the General Clauses Act, 1897, were applicable to the omission of Section 3A? 3. Whether Rule 96ZO of the Central Excise Rules, 1944, would survive beyond the date of omission of Section 3A?
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in Shree Bhagwati Steel Rolling Mills v. Commr. of Central Excise, which held that the omission of a provision from a statute is a form of repeal and that the saving provisions of Section 6 of the General Clauses Act, 1897, are applicable to such omissions. 2. The court also relied on the definition of "enactment" in Section 3(19) of the General Clauses Act, which includes any provision contained in any Act, and held that the omission of Section 3A was an omission of a provision contained in an Act. 3. The court further held that Rule 96ZO of the Central Excise Rules, 1944, was a provision made under Section 3A and that it would therefore survive the omission of Section 3A.
Final Decision: The court answered the issues in favor of the department but clarified that the parties in future will be covered by the decision of the Supreme Court.
JUDGMENT
K.S. Jhaveri, J. —Since both these appeals arise out of the same order, they are being decided by this common order.
2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal preferred by the assessee.
3. This Court while admitting the Appeal No. 41/2008 on 5-11-2008, framed the following substantial questions of law :-
"(i) Whether the CESTAT is correct in law in applying the ratio of its earlier decisions which are distinguishable as in the relied upon cases the OIO''s were passed after 11-5-2001 whereas in the instant case the Order-in-Original was passed on 22-9-2000 which was prior to 11-5-2001 i.e. the date on which Section 3A was omitted?
(ii) Whether the omission of Section 3A of the Central Excise Act, 1944 by Section 121 of Finance Act, 2001, without any saving clause would effect the proceedings in respect of which decision has already been taken prior to the date of omission?"
4. This Court while admitting the appeal No. 42/2008 on 6-1-2009, framed the following substantial questions of law :-
"(i) Whether the omission of Section 3A of the Central Excise Act, 1944 by Section 121 of Finance Act, 2001, without any saving clause would affect the proceedings in respect of which decision has already been taken prior to the date of omission?
(ii) Whether the CESTAT was correct in holding that the saving provisions of Section 6 of the General Clauses Act, 1897 were not applicable to ''omission'' of Section 3A of the Central Excise Act, 1944 which was omitted vide Section 121 of Finance Act, 2001?
(iii) Whether the CESTAT was correct in holding that there is no saving clause provided in Section 121 or any other Section of Finance Act, 2001 ignoring Section 131 of the Finance Act, 2001 which inter alia provided for saving clause for Rules, Notification or Orders?
(iv) Whether the CESTAT was correct in law in holding that Rule 96ZO of the Central Excise Rules, 1944 will not survive beyond 11-5-2001 i.e. the date of omission of Section 3A of the Central Excise Act, 1944 vide Section 121 of the Finance Act, 2001, while not considering the provisions of Section 131 of the Finance Act, 2001?"
5. Counsel for the respondents raised preliminary objection that the amount involved is covered by the circular.
6. However, the Supreme Court in Shree Bhagwati Steel Rolling Mills v. Commr. of Central Excise, 2015 (326) E.L.T. 209 (S.C.) has observed as under :-
"12. First and foremost, it is important to refer to the definition of "enactment" contained in Section 3(19) of the General Clauses Act. The said definition clause states that "enactment" shall mean the following :
"enactment" shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid."
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 expression "omit" i
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