TaxTMI 
TaxTMI 
2012 (1) TMI 36
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....(for brevity 'the CESTAT'). The question of law raised in the instant appeal is as follows: 'Whether Rule 5 of the Hot Re-rolling Steels Mills Annual Capacity Determination Rules, 1997 (for brevity '1997 Rules') would apply to a case where a manufacturer had made changes in installed machinery or any part thereof after seeking approval of the Commissioner of Excise in terms of Rule 4(2) of 1997 Rules?' 2. In order to put the controversy in its proper perspective, few facts would be necessary. M/s Hans Raj Steel Rolling Mills-respondent were engaged in the manufacture of hot re-rolled products of non-alloy steel during the period from 01.09.1997 to 31.03.2000. They were charged to duty under Section 3A of the Central Exci....
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.... before the CESTAT, which has reiterated the view taken by the Commissioner. The CESTAT placing reliance on the judgment of this Court in the case of CCE v. Doaba Steel Rolling Mills 2003 (54) ELT 142 held as under: "6. Undisputedly, the Larger Bench has held that when the change of machinery leads to reduction in annual capacity, the said rule would not apply. It is not in dispute that the said ruling has not been set aside by any of the High Court or Apex Court till this day. Being so, as pointed out by ld. Advocate for the respondents the law on the point is very clear that in case of change in machinery leading to reduction of annual capacity, the provisions of Rule 5 could not be attracted. The reduction has resulted on accou....
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....aba Steel Rolling Mills's case (supra) and therefore, the judgment of Hon'ble the Supreme Court cannot be regarded as final view on the issue. 5. Having heard learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the issue raised by the revenue-appellant is squarely covered in its favour by the judgment of Hon'ble the Supreme Court rendered in Doaba Steel Rolling Mills's case (supra). 6. It is appropriate to mention that Section 3A was inserted on 14.05.1997 in the Act to charge excise duty on goods on the basis of annual capacity of production of mills etc. in respect of the notified goods. The aforesaid provisions insofar as relevant for the decision ....
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....the rank of Assistant Commissioner of Central Excise and such annual capacity of production shall be deemed to be the annual production of such goods by such factory: Provided that where a factory producing notified goods is in operation during a part of the year only, the annual production thereof shall be calculated on proportionate basis of the annual capacity of production: Provided further that in a case where the factor relevant to the production is altered or modified at any time during the year, the annual production shall be re-determined on a proportionate basis having regard to such alteration or modification." 7. It was under sub-Section (2) of Section 3-A of the Act that a notification dated 25.07.....
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....Supreme Court with regard to interpretation of various provisions is discernible from paras 18 and 19 of the judgment of Hon'ble the Supreme Court which read as under: "18. As noted above, Section 3A was inserted in the Act to enable the Central Government to levy Excise duty on manufacture or production of certain notified goods on the basis of annual capacity of production to be determined by the Commissioner of Central Excise in terms of the Rules to be framed by the Central Government. Section 3A of the Act is an exception to Section 3 of the Act the charging Section and being in nature of a non obstante provision, the provisions contained in the said Section override those of Section 3 of the Act. Rule 3 of 1997 Rules framed ....
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....of sub-rule (3) of Rule 3. That being so, it must logically follow that Rule 5 cannot be ignored in relation to a situation arising on account of an intimation under Rule 4(2) of the 1997 Rules. Moreover, the language of Rule 5 being clear and unambiguous, in the sense that in a case where annual capacity is determined/ redetermined by applying the formula prescribed in sub-rule (3) of Rule 3, Rule 5 springs into action and has to be given full effect to." 9. It is thus, evident that the judgment of this Court rendered in the case of Doaba Steel Rolling Mills's case (supra) stands reversed and the appeal of the Revenue has been allowed. Therefore, it cannot be said that the present matter is not covered by the judgment of Hon'ble ....