- (1.) This appeal, by the revenue, under Section 35L(b) of the Central Excise Act, 1944 (for short, "the Act") is directed against Final Order No. 455/2002-A dated 25th September 2002 [2002 146 ELT 646 (Tri. - Del.)], passed by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, as it existed at the relevant time, (for short "the Tribunal"). By the impugned order, the Tribunal has allowed the appeal preferred by the Assessee against the order, dated 25th October 2001, passed by the Commissioner of Central Excise, Meerut, confirming a demand of Rs. 36,91,550.47 under Section 11D read with Section 11A of the Act, along with equivalent amounts of penalty under Section 11AC and interest under Section 11AB of the Act.
(2.) The short legal question before the Tribunal was whether the Assessee, being only a "dealer" and not a "manufacturer" was liable to pay Excise duty under Section 11D of the Act
(3.) Accepting the plea of the Assessee that the amendment of Sub-section (1) of Section 11D of the Act, with retrospective effect from 20th September 1991, by Section 103 of the Finance Act, 2000, had no application to the period in question, the Tribunal held as follows: There is no dispute before us that demand sustained by the Commissioner was in respect of the goods which were not manufactured by the Appellant. Before the Andhra Pradesh High Court the constitutional validity of Section 11D, before its amendment was under challenge alongwith other provisions. In order to uphold the constitutionality of the provisions the High Court read down the expression "every person' in Sub-section (1) of Section 11D as the manufacturer/producer as also the expression 'every person' appearing in Section 28B of the Customs Act as the importer. It was the above view that has been expressed by this statutory amendment under Section 103 of the Finance Act 2002 with retrospective effect from 20-9-91. In the present case, we are concerned with the demand for a period from July 1997 to August 2000. Under these circumstances, the Appellant's contentions are only to be accepted. No demand can be raised against the Appellant under Section 11D as it is not the manufacturer of the concerned goods. In the result, we set aside the impugned order and allow the appeal.;