TaxTMI 
TaxTMI 
2011 (10) TMI 445
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....f the Central Excise Act 1944. The appeal is admitted on the following substantial questions : "(a) Whether in the facts and circumstances of the case, the Hon'ble CESTAT was justified in directing the Appellants to deposit Rs. 2,11,00,000/- under Section 35F of the Act? (b) Whether in the facts and circumstances of the case, the Hon'ble CESTAT was right in holding that the Appellants did not make out a prima facie case for total waiver of pre-deposit?" 2. With the consent of the learned counsel, the Appeal is taken up for hearing and final disposal. 3. The Appellant manufactures M.S. ingots falling under Chapter 72 of the Central Excise Tariff Act, 1985 and for which purpose the ....
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....998-99 was 3741.565 MT. This plea was rejected by the Commissioner on the ground that the assessee did not submit any evidence in support of its claim in regard to the actual production for 1998-99. 5. The assessee had filed five appeals before the Tribunal. Of the appeals, Appeals E/18 and 19/2005-MUM pertained to the determination of the ACP under the provisions of Section 3A of the Central Excise Act, 1944 which as noted earlier had been determined as 25,600 M.T. Before the Tribunal, which disposed of all the appeals on 9 July 2008 the assessee withdrew Appeals E/18 and 19/2005-MUM on the ground that the determination of the actual capacity was acceptable. However, the other four appeals being serially E/14 to 17 of 2005 were rem....
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....on 3A(2) and the withdrawal of those appeals would not preclude the assessee from seeking a determination under sub-section (4) of Section 3A; (iv) The assessee has other arguable points on merits including the submission that the jurisdiction under Section 3A could not have been invoked since the provision was deleted by the Finance Act of 2001. In the present case, it was urged that the order of adjudication was passed after the deletion of the provision though as a matter of fact, the notice to show cause had been issued prior to the commission of the Section. In this regard it was urged, relying on the judgments of the Supreme Court in Messrs Rayala Corporation (P) Ltd. v. Director of Enforcement - 1969 (2) SCC 412; Kolhapur Canesugar W....
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....ures relating to its actual production during 1998-99 were available to the department through the statutory record maintained by the assesse and the returns which were submitted to the department. The Commissioner allowed the benefit of an abatement of duty for the period during which the factory of the assessee was closed in the total amount of Rs. 2 Crores and directed the assessee to deposit the balance of Rs. 2.21 Crores. 11. The grievance of the assessee before the Court is that the Tribunal has erred in coming to the conclusion that the mere withdrawal of Appeals E-18/2005 and E-19/2005 would preclude the assessee from contending that its actual production was less than what was determined on the basis of ACP. The Tribu....
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.... We are not inclined to accede to this prayer at the present stage. Continuous remands by the High Court to the Tribunal, particularly at the interlocutory stage when issues of pre-deposit arise only add to the burden of litigation before the Tribunal and eventually result in the postponement of the date on which a revenue liability has to be fulfilled. In the present case, there have already been several orders of remand by the Tribunal and by this Court. In the meantime, the Revenue is deprived of its entitlement to dues. 14. Having regard to all the facts and circumstances, therefore we are of the view that while we are not inclined to set aside the order of the Tribunal in its entirety and to remand the proceedings, some conside....