(Per : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. The appellant – revenue in this appeal under Section 35-G of the Central Excise Act, 1944 ("the Act") called in question the legality and validity of the order dated 11.11.2005 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai, whereby the appeal preferred by the respondent – assessee has been allowed.
2. While admitting the appeal, this Court had by an order dated 07.10.2006 formulated the following substantial question of law:
“Whether the CESTAT is correct in not upholding the mandatory penal provisions of Rule 96-ZQ of Central Excise Rule, 1944 in the instant case and if so whether the CESTAT is empowered to do so?”
3. It is an accepted position that the controversy raised by the aforesaid question stands concluded in favour of the revenue by the decision of the Supreme Court in the case of Union of India v. Dharamendra Textile Processors, 2008 (231) ELT 3 (S.C.), wherein it has been held that rule 96ZQ(5) (ii) of the Rules is mandatory in nature and there is no discretion vested in the adjudicating authority to levy lesser amount of penalty. Hence, the question would be required to be answered in the affirmative, that is, in favour of the revenue and against the assessee. However, in the said decision, it was also held that the challenge to the vires of the said sub-rule in the original writ petitions before the High Court would stand revived and the entire batch of petitions came to be remitted to the respective High Courts for deciding the question of vires of rule 96ZQ(5)(ii) of the Rules. Pursuant thereto, this Court in the case of Krishna Processors v. Union of India, 2012 (280) ELT 186 (Guj) has struck down rule 96ZQ(5)(ii) of the Rules as being ultra vires Article 14, 19(1)(g) and 265 of the Constitution of India.
4. In the aforesaid premises, the controversy raised in the present appeal would no longer survive. The appeal is, accordingly, dismissed as having become infructuous with no order as to costs.
[AKIL KURESHI, J.] [HARSHA DEVANI, J.] parmar*