TaxTMI 
TaxTMI 
TaxTMI 
2007 (3) TMI 593
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....apacity Determination Rules, 1997. The Commissioner had determined the ACP of their mill at 29,206 MTs w.e.f. 1-9-97 under Rule 5 of the above Rules on the basis of the actual production for the year 1996-97. This decision was duly communicated to the appellants by the Asst. Commissioner in a letter dated 22-9-97. Towards the end of 1998, the parameter "(d)" [nominal centre distance of the pinions in the pinion stand] was reduced from 300 mm to 156 mm and this change was approved by the Commissioner w.e.f. 1-1-99. Under Rule 96ZP(3), the appellants were liable to pay duty for each month, which was equivalent to 1/12th of the amount calculated at the rate of Rs. 300/- multiplied by the ACP determined in MTs where parameter "(d)" was above 16....
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....emselves worked out the ACP to be 13,677 MTs. According to them, the pro rata duty liability per month from Jan.'99 would be only Rs. 1,89,838/- in terms of the third proviso to Rule 96ZP (3). They also submitted that the payments already made by them for the period upto December '97 had not been taken into account by the department. After considering these and other submissions, the Commissioner passed the following order :- "1. Proceedings in respect of the show cause notice O.C. No. 91/98 dated 17-2-98 issued for demanding duty for the period from September, 1997 to December, 1997 are treated as redundant and dropped as the demand for the same period has been covered in the subsequent show cause notice O.C. No. 194/98 dated 3-3-98. 2. ....
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....appeal No. 508/2002. 3. After examining the records and hearing both sides, we find that the ACP of the assessee's mill had been determined by the Commissioner under Rule 5 of the relevant rules at 29,206 MTs. This determination was never challenged by the assessee. Later on, the Commissioner maintained the same ACP with the changed parameter "(d)" at 156 mm w.e.f. 1-1-99 under Rule 4(2) and Rule 5 of the Annual Capacity Determination Rules, 1999. This decision of the Commissioner was communicated to the party by the Asst. Commissioner in a letter dt. 5-3-99, but the same was also not challenged. 4. It further appears from the records that the writ petition challenging the constitutional validity of Rule 5 of the ACP Determinati....
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....t 156 mm. On this basis, the ACP for the period from January '99 would be 29206x156/300 = 15187 MTs and, accordingly, the monthly duty liability would be 15187x150/12 = Rs. 1,89,838/-. This claim is based on the third proviso to sub-rule (3) of Rule 96ZP, which reads thus :- "Provided also that if a manufacturer makes a change in the capacity of re-rolling installed in his factory, or there is any change in the total re-rolling capacity installed, he shall pay the amount calculated pro rata". After examining the provisions, we find that the above claim is misconceived. The Commissioner worked out an amount of Rs. 28,94,805/- for the period January 1999 to March 2000 in terms of the first proviso to Rule 96ZP(3). That computation took into....
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....Appeal No. 438/2001 stands dismissed. 8. In the subsequent order, learned Commissioner imposed a penalty equal to duty on the assessee under Rule 96ZP(3). The Tribunal has consistently held that it is open to the departmental authorities, under the above provision of law, to impose a lesser penalty on a manufacturer of re-rolled products depending on the facts and circumstances of the case. It appears from the impugned order that learned Commissioner has termed the penalty under Rule 96ZP (3) as "mandatory". Ld. Commissioner has not even attempted exercise of discretion in the matter. The relevant observation in the impugned order reads thus : "......like Section 11AC/AB of the Central Excise Act, 1944, penalty and interest contempla....