BINANI ZINC LTD. Vs. COMMISSIONER OF CENTRAL EXCISE,

JUDGEMENT

(1.) SL .No.1 to 20 of Part I are application filed by the above applicants for restoration of appeals which have been dismissed as per order No. F/249 -299/2001 dated 27th February 2001 in the case of Wipro Limited and others and subsequent respective orders. These applications were filed on the ground that appeals are to be restored to their original nos. in view of the decision of the larger bench in the case of Kishan Sahakari Chini Mills Ltd. v. CCE, Kanpur reported in 2001 (131) ELT 370.

(2.) BY Order No. F/249 -299/2001 dated 27.2.2001, the tribunal observed that "in all these cases the proceedings were initiated with reference to the repealed provisions/ rules. When once the rules were deleted from the statute they were non -est in the eye of law. It is as if it hod never been passed in the statute. When once that rule is considered to be void abinitio nothing survives with reference to such rule. Accordingly, no action can be initiated with reference to such repealed provisions and all actions must stop and not even appeal can be entertained in such a situation. In the absence of a saving clause all the proceeding initiated under the old repealed rules would simply lapse". In the view the Tribunal has taken, the appeal were dismissed as not maintainable.

(3.) THE Counsel appearing for the respective parties submitted that the appeals are to be restored in view of the amendment in the Finance Act of 2001 by inserting Section 38A therein as well as in view of the decision of the larger bench in the case of Kisan Sahkari Chini Mills Ltd. v. Commissioner of Central Excise, Kanpur reported in 2001 (131) ELT 370. It was submitted by them that as per Section 131 of the Act a new Section 38A had been introduced with the provision that the same shall be deemed to have been inserted on or from 28.02.1944. The effect of the insertion of the said section is to the effect that repeal of Modvat provisions w.e.f. 1.4.2000 will not affect the previous operation of the rules and the right, privilege, obligation or liability acquired, accrued or incurred under the said repealed rules. It was also submitted that objects of the Finance Act is also to be taken into consideration in resorting these appeals.