TaxTMI 
TaxTMI 
2009 (6) TMI 994
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....llant submitted declaration to the Revenue and on 24-4-98, the Annual Production Capacity (APC) for the period from 1-9-97 to 31-3-98 was communicated by a letter. On 29-1-99, the APC for 1998-99 was communicated and in May, 2000, the APC for the year 1999-31-3-2000 was communicated. 2. However, on 28-10-97, on a group of writ petitions including the petition filed by All India Re-Rolling Mills' Association, the Hon'ble Delhi High Court passed a detailed stay order as reported in 1997 (96) E.L.T. 232 staying implementation of Rule 96ZP and Notifications issued thereunder. Revenue filed Civil Appeals before the Hon'ble Supreme Court and Hon'ble Supreme Court passed an order, restraining the Union Government from taking penal or coerc....
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....n'ble Supreme Court has directed that excise duty shall accordingly be assessed in respect of matters not yet closed and still pending before the concerned authorities. [UOI v. Supreme Steel and General Mills - 2001 (133) E.L.T. 513 (S.C.) = 2001 (47) RLT 129]. Appellant's case was not closed and was pending on 15th October, 2001 when the above direction was issued by the Hon'ble Supreme Court, and therefore, duty has to be assessed on the basis of actual production, and not on the basis of Annual Production Capacity determined for the appellant's factory. (ii) Section 3A stands deleted without any saving clause with effect from 11-5-2001 and Rule 96ZP stands deleted without any saving clause with effect from 1-3-2001. ....
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.... adjust and pay duties on actual production for the whole year because their cases were not yet closed and were pending like the present case. There is no reason nor any justification in meeting out differential treatment only to the appellant on the sole ground that the appellant had opted for the Scheme at the relevant time and therefore, the appellant cannot be allowed to be opt out from the Scheme notwithstanding all the above litigation, orders of the Hon'ble Courts and also the peculiar nature of the controversy. 3. Further, Ld. Advocate submits that the impugned order has been passed stating that APC for 3 years has already been fixed and communicated to the appellants and therefore has attained finality. He drew our attentio....
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....d. He also observed that such APC was revised once again in the year 1998. It was also observed by the Commissioner that during the visit of the officers they had found that the appellants did not declare "d" factor correctly, which was conducted by the department during the visit of the officers on 20-11-98. The obvious conclusion the Commissioner has drawn is that APC has already been fixed. Commissioner also goes on to observe that the main issue is not whether the applications made on 25-5-98, 25-9-98 and 31-3-99 were considered or not and these are in contradiction to the claim of the appellants before the Hon'ble High Court. He also observes that based on the misleading pleadings by the appellants, the Hon'ble High Court had passed th....
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....e :- "2. Learned Counsel for the parties informed that now the matter remains confined to a period of three years only as the scheme so introduced, has since been dropped. Shri Joseph Vellapally and the other learned counsels appearing on behalf of the manufacturers have stated that they do not challenge the validity of Section 3A, introduced in Central Excise Act, 1944. On the other hand it has been submitted that the excise duty may be charged according to the said provision, on the basis of actual production but for the period of whole year. Shri Harish Salve, learned counsel appearing for the Union of India submitted that there is no dispute with the offer made and also that the assessment shall be made for whole period of one year n....
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.... 7. As regards the submissions made by the Ld. Advocate regarding Section 3A and relevant decisions cited by the Ld. Advocate, we have to observe that on the one hand the Ld. Advocate pleaded that applications filed before the Commissioner requesting for revision of APC to be considered and on the other hand he claims that Section 3A is non existent and no APC can be fixed now. On the other hand, we find that in none of the three applications, the appellant had made a claim that no speaking order was passed by the Commissioner. If the stand of the appellants that Section 3A is no longer in existence and thereof matter cannot be decided now is accepted, the position would be that the earlier order fixing the APC becomes final and cons....