KISAN SAHKARI CHINI MILL Vs. CCE, KANPUR

JUDGEMENT

(1.) This appeal is against the order passed on 12.5.97 by the Commissioner of Central Excise (Appeals). By the impugned order, the lower appellate authority had rejected the assessee's appeal and upheld the Order -in -Original dated 11.9.96 of the Assistant Commissioner. The Assistant Commissioner's order was in confirmation of a demand of duty raised in show -cause -notice dated 19.5.95. That was a demand under Rule 57U of the Central Excise Rules 1944 read with Section 11A of the Central Excises and Salt Act, 1944. The demand was based on the allegation that modvat credit taken by the assessee to the extent of Rs.1,54,346.71 on certain capital goods was not admissible.

(2.) Examined the records and heard both sides.

(3.) Ld. Advocate, Sh. Bipin Garg for the appellants has, at the outset, drawn my attention to a decision of the Bangalore Regional Bench of this Tribunal (in the case of Wipro Ltd. and Ors. Vs. CCE, Bangalore) reported in 2001 (43) RLT 317. That decision was rendered in a batch of appeals [filed in 1996, 1997, 1998, 2000 and 2001] mostly involving issues pertaining to modvat credits availed under Rule 57A or 57Q [of the Central Excise Rules, 1944] on inputs or capital goods, as the case may be. The Bench took note of the substitution of new Rules 57A to 57I [referred to as the CENVAT Rules] for the old Rules 57A to 57U of the Central Excise Rules 1944, effected on 1.4.2000 under Notification No. 11/2000 -CE(NT) dated 1.3.2000 and also noted the subsequent amendment of the CENVAT Rules by Notification No. 27/2000 -CE(NT) dated 31.3.2000 and found that neither of the Notifications introduced any provision for saving the proceedings relating to modvat credits which were pending as on 31.3.2000. The Bench then considered the decision of the Supreme Court in the case of KXS.C.)] and, relying on that decision,held as under: - "in all these cases the proceedings were initiated with reference to the repealed/provisions/rules.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 had 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 Accordingly no action can be initiated with reference to such repealed provisions and all actions must stop and not even appeal can be entertained in such a situation.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 proceedings initiated under the old repealed rules would simply lapse. In these circumstances we are not inclined to grant any relief as prayed for by the respective parties. Accordingly all these appeals are dismissed as not maintainable."