SHIVALIK PRINTS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This appeal has been filed against the impugned order in appeal vide which the Commissioner (Appeals) has affirmed the order -in -original who confirmed the duty demand against the appellants.

(2.) The facts are not much in dispute. The appellants are engaged in the manufacture of man -made fabrics, cotton fabrics etc. Being an independent textile processor having two hot air stenters of five chambers each installed in their factory, they had been discharging the duty under the Compounded Levy Scheme in terms of Section 3A of the Act. The Compounded Levy Scheme was, however, withdrawn w.e.f. 1 -3 -2001 and appellants started paying the duty on ad valorem basis. During the operation of the scheme, they, however, on 7 -2 -2001, requested the Deputy Commissioner of Central Excise for sealing one of their stenters and the same was sealed on 15 -2 -2001. Thereafter, they wanted abatement of duty from 15 -2 -2001 till the re -opening of the stenter on 28 -2 -2001 but the same had been denied on the ground that 15 days closure of the stenter was not complete on 1 -3 -2001 when the Compounded Levy Scheme was withdrawn.

(3.) We have heard both the sides and gone through the record. We find that one stenter of the appellants was sealed on 15 -2 -2001 on their request by the Range officer. The permission to remove the seal was granted to them only on 28 -2 -2001. Therefore, from 15 -2 -2001 to 28 -2 -2001, their stenter remained closed/sealed. The closure of stenter was more than 15 days. The plea of the Revenue that 15 days period was not complete on 1 -3 -2001, the date when the Compounded Levy Scheme was withdrawn and as such, the appellants are liable to pay the duty and no abatement can be allowed to them, cannot be accepted, keeping in view the provisions of Section 38A of the Act, which mandates that where any rule, notification or order issued under the Act or notification, is amended, repealed, superseded or rescinded, the same shall not affect any right, privilege, obligation or liability acquired, accrued under the rule, notification so amended/repealed or rescinded. The appellants acquired the right under the Compounded Levy Scheme to claim abatement of duty in respect of their one stenter which remained closed continuously for a period of more than 15 days. The withdrawal of the Compounded Levy Scheme did not affect their right. Similar view, has been taken by the Larger Bench of the Tribunal in the case of Kisan Sahkari Chini Mills Ltd. v. CCE, Kanpur [2001 (131) E.L.T. 370] wherein there was repeal of the Modvat provisions w.e.f. 1 -4 -2000 but it was observed that repeal did not affect the right, privilege, obligation acquired by the assessee under the repealed rules by virtue of introduction of Section 38A. Therefore, no duty can be claimed from the appellants in respect of a stenter which had remained closed for a continuous period of more than fifteen days.